Author: Petra Ingerson Bergman, Associate Member, University of Cincinnati Law Review
Arguably, no case is more seminal to the free speech jurisprudence in schools than Tinker v. Des Moines Independent Community School District. Indeed, Tinker is integral to the three cases involved in the current circuit split concerning the application of Tinker, and its progeny, to the ability of schools to regulate off-campus speech and the appropriate standard under which to analyze off-campus speech. On one side, the Eighth Circuit held that the proper test to analyze the ability of schools to regulate or discipline off-campus speech is whether it was “reasonably foreseeable” that the speech would reach the school and cause a “substantial disruption.” On the other side, the Fourth Circuit held that the proper test was the “nexus” test that holds that certain degree of intertwinement between the school and the speech will justify regulation by the school. However, in C.R. v. Eugene School District, the Ninth Circuit declined to decide which test is the proper test, stating that the facts of the case at hand pass both tests permitting the court to continue with the Tinker analysis of “material disruption” or interference with the “rights of others.”
Although the Ninth Circuit correctly decided the case, only the Fourth Circuit rightfully highlighted the dilemma of juxtaposing political dissent to vicious bullying. Regrettably, Tinker is the proper standard under which to analyze a student’s freedom of speech. However, out of respect for the conceptual sanctity of the right to speak freely, our courts need to sever the issue of bullying from the discussion of constitutional rights.
Tinker v. Des Moines Independent Community School District
John Tinker, Mary Beth Tinker, and Christopher Eckhardt planned to wear black armbands to school in protest of the Vietnam War. Their respective schools learned of their protest and instituted a ban against armbands in school. Undeterred by the new policy, the three students wore their armbands and were suspended. The students filed suit in District Court alleging violations of their First Amendment rights. The District Court held for the School District, and an equally divided Eighth Circuit reaffirmed the lower court’s ruling. The United States Supreme Court granted certiorari and held for the students stating that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court held that a student may be constitutionally protected to express themselves as long as the student does not “materially [or] substantially interfer[e]” with the “operation of the school and without colliding with the rights of others.” Since Tinker, federal courts have grappled with other applications, including non-political speech and off-campus speech, as well as the limits of Tinker’s protections.
The Eighth Circuit’s “Reasonably Foreseeable” Test
Twin brothers, Steven and Sean Wilson, were suspended for 180 days for the “disruption” caused by a website they created. The website, a blog entitled NorthPress, was created to “discuss, satirize, and ‘vent’ about events” at the school. However, in December 2011, the Wilsons posted blog entries that included offensive and racist content, as well as sexually explicit commentary about a female classmate. After the blog came to the attention of the entire school, the Wilsons were suspended for ten days including a referral to the School District. A series of appeals and hearings took place, after which the District suspended the brothers from their school for 180 days with permission to attend another school “for the duration of their suspensions.” The Wilsons brought suit in District Court alleging violations of their First Amendment rights and seeking an injunctive relief to “lift” their suspensions.
According to the Wilsons, attending an alternate school during their suspensions would damage their future academic prospects. In opposition, the school argued that the blog was being accessed from school computers and was causing “substantial disruption” with some educators calling a particular day the “most disrupted day of their teaching careers.” The District Court found for the Wilsons, citing the irreparable harm to their collegiate careers. The School District appealed.
However, on appeal the Eighth Circuit found for the School District, vacated the order, and reversed the injunctive relief. The Court held that Tinker was the relevant precedent upon which to base their decision because the blog was “targeted” at the school and caused a “material” disruption. Furthermore, the Court held that Tinker applied to off-campus, online speech when it is “reasonably foreseeable” that the speech will “reach” the school community and “cause a substantial disruption.” Given that Tinker applied, the Court held that the Wilsons were not likely to succeed on the merits because the blog was not likely to pass Tinker. Therefore, the speech was not protected under the First Amendment. Lastly, as the potential harm to the Wilsons’ collegiate career was “speculative”, granting a preliminary injunction was improper given that the Wilsons were highly unlikely to succeed on the merits.
The Fourth Circuit’s “Nexus” Test
Similar to the Wilsons, Kara Kowalski was suspended from school for online speech. The high school senior created a MySpace page to “make students actively aware of STD’s.” with the heading “S.A.S.H.” that she stated was an acronym for “Students Against Sluts Herpes.” However, a fellow classmate stated the acronym stood for “Students Against Shay’s Herpes.” The target of the MySpace page was a student named Shay N, as evidenced by the online interactions between students and Kowalski.
Eventually, the page came to the attention of Shay and her father, who brought the MySpace page to the school’s attention, and filed a harassment complaint. The school’s principal directed the complaint to the school board, which prompted an investigation that resulted in the school determining that the MySpace page violated the harassment policy because it was a “hate website.” As a result, Kowalski was originally suspended for ten days with a ninety day suspension from school social events, but the ten days was reduced to five days while the ninety day “social suspension” remained intact. In response to her punishment, Kowalski brought suit in District Court seeking injunctive relief and alleging, among other claims, that her First Amendment right to free speech was violated. The District Court granted summary judgment for the defendants and Kowalski appealed.
On appeal, the Fourth Circuit also applied Tinker and found that Kowalski’s MySpace page was not protected by the First Amendment because it “materially disrupted” the classroom. However, unlike the Wilsons, Kowalski does not dispute that her webpage amounted to harassment; the crux of her argument centered on the fact that the speech took place off school premises, and therefore outside the school’s disciplinary jurisdiction. The Court declined to entertain her off-premises argument, stating instead that “the nexus of Kowalski’s speech to Musselman High School’s pedagogical interests was sufficiently strong to justify the action taken by the school.” Accordingly, the court affirmed the District Court’s holding stating that Kowalski’s speech was not entitled to First Amendment protection.
The Ninth Circuit’s Failure to Take a Stance
Plaintiff-Appellant, C.R., was a seventh-grade boy at Monroe Middle School. A group of boys, including C.R., were accused of sexually harassing two Monroe Middle School sixth-grade students, A.I. and J.R. The group of boys followed A.I. and J.R. home along a path that neighbors the school. Although the route runs adjacent to the school, the harassment technically took place off school property. In a “series of encounters,” the boys harassed A.I. and J.R., including questioning them about pornography and inappropriately referencing oral sex. Accordingly, the school “imposed a two-day, out-of-school suspension” based upon their finding that C.R. had violated the school’s sexual harassment policy. C.R.’s parents sued the School District asserting a violation of C.R.’s First Amendment rights, stating that the speech took place off-campus, outside the school’s disciplinary jurisdiction. The District Court held for the School District and C.R. appealed.
The Ninth Circuit affirmed the lower court’s holding. The court began with the standard of review for First Amendment protections for free speech in schools, as well as the proper standard for off-campus speech. Citing to the Fourth and Eighth Circuit’s decisions in Kowalski and Lee’s Summit, the Court acknowledged the “nexus” and reasonably “foreseeable tests” as applicable standards for off-campus speech. The court stated that “once the court has determined that…off-campus speech [is] susceptible to regulation by the school, we apply Tinker.” Accordingly, the court applied both the “nexus” and “reasonably foreseeable” tests, and concluded that the facts of the instant case passed both tests, making C.R.’s speech subject to school regulation. The school’s causal relationship to the path home satisfied the nexus test because it was the “school itself that brought the children together on the path.” Furthermore, the nature of inter-school harassment made C.R.’s speech “reasonably foreseeable” to be discovered by the school because students either exhibit signs of harassment or report harassment.
After the court established that the speech was subject to school regulation, a simple Tinker analysis followed. The court decided the case on the second prong of Tinker; a school can regulate speech if it “collides with the rights of other students to be secure and let alone.” Sexual harassment is implicated as such a right and, therefore, the speech was not protected by the First Amendment.
A Need for a New Threshold: the Bully Test
The Ninth Circuit stated that a Tinker analysis follows a finding that the off-campus speech is subject to school regulation but failed to decide which test better permits such a finding. Upon close inspection, the “nexus” test and the “reasonably foreseeable” test are similar enough that one set of facts likely could not pass one without equally passing the other. This conclusion is supported by the decision in C.R. as the Ninth Circuit declined to take a stance because both tests would be satisfied. Both tests permit the school to assume control of a situation within their grasps but not necessarily certainly within their jurisdiction. A student spends a significant percentage of their time in school, where any amount of bullying, whether online or off-campus, is likely to prompt the “nexus” test or the “reasonably foreseeable” test.
Yet, once a Tinker analysis is triggered upon a finding of a school’s authority to discipline, an uncomfortable comparison between the freedom to bully and the freedom to politically protest follows. The right to free speech, especially political speech, is one of the most powerful and symbolic rights bestowed by the Constitution. Maintaining Tinker as the proper standard for regulating speech in schools is easy; in combination with the “nexus” and “reasonably foreseeable” tests, it is unlikely that a Tinker analysis will ever find bullying constitutionally protected. Empowering schools to regulate bullying is a wonderful, and much needed, ability. However, using Tinker to accomplish this goal diminishes the instrumental role the young students in Tinker played in shaping the First Amendment protections for students, enabling students to be conscious, active citizens.
Tinker v. Des Moines Independent Community School District bestowed upon students the ability to, conditionally, exercise their constitutional right to free speech. The students in Tinker fought for their right to politically speak out against the Vietnam War. In the decades since Tinker, courts have struggled with defining Tinker’s applicability. As avenues for bullying have exponentially multiplied, courts have further struggled to determine whether bullying, as a form of speech, is protected by the First Amendment, especially if the bullying took place off-campus. Although circuits have formed multiple tests with which to determine whether a school may discipline a student for off-campus speech, most courts have not addressed the dilemma of comparing political speech to bullying. This dilemma highlights the need for a new test that limits bullying as a form of speech subject to a Tinker analysis.
 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S. Ct. 733 (1969).
 S. J. W. v. Lee’s Summit R-7 Sch. Dist., 696 F.3d 771 (8th Cir. 2012).
 Kowalski v. Berkeley Cty. Sch., 652 F.3d 565 (4th Cir. 2011).
 C.R. v. Eugene Sch. Dist. 4J, No. 13-35856, 2016 U.S. App. LEXIS 16202 (9th Cir. Sep. 1, 2016).
 Tinker, 393 U.S. at 503.
 Id. at 504.
 Id. at 505.
 Id. at 507.
 Id. at 513.
 Lee’s Summit, 696 F.3d at 773.
 Id. The brothers’ complaints included less challenging curriculum, a lack of ACT preparation and “honors courses,” and a less prestigious musical program that would hinder their musical scholarship options.
 Id. at 775.
 Id. at 777.
 Id. at 776.
 Id. at 777.
 Id. at 778
 Id. at 779.
 Kowalski, 652 at 567.
 Id. at 568. Derogatory pictures and comments flooded the page about Shay.
 Id. at 569.
 Id. at 570.
 Id. at 573.
 Id. at 575.
 Eugene, 4J, No. 13-35856, 2016 U.S. App. LEXIS at *4.
 Id. at *6.
 Id. at *4.
 Id. at *11.
 Id. at *16.
 Id. at *15.
 Id. at *16.
 Id. at *17. The path is considered the “backfield” of the school, the school knowingly releases the various grades at the same time that permits the interaction, and the lack of alternate routes home justify stating that the school itself brought the children together on that path.
 Id. at 18.
 Id. at *20.
 Id. at *22.