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Not To Decide Is to Decide: The Supreme Court’s Decision Not to Review Four Student Internet-Speech Cases Leaves Public-School Educators in a State of Confusion

by Richard Fossey, Todd A. DeMitchell & Suzanne Eckes - October 26, 2012

Public school leaders need guidance from the Supreme Court concerning their authority to regulate students' internet-delivered speech that is hurtful to others in the school community.

“Not to decide is to decide.” This terse quote, attributed to Harvard University Professor Harvey Cox, exactly summarizes the state of the law regarding a student’s constitutional right to engage in internet speech. During the Supreme Court’s 2011 term, the Supreme Court declined to hear four important student internet-speech cases (McCarthy, 2012). By deciding not to decide, the Court left public-school educators in a state of confusion about their authority to regulate students’ internet speech that is communicated off campus but which demeans and wounds other people in the school community--either students or adult educators.

Two of the cases concerned parody Facebook profiles that students constructed to mock their school principals (J.S. ex rel. Snyder v. Blue Mountain School District, 2011; Layshock v. Hermitage School District, 2011). Although the fake profiles did not list the principals by name, both included the principal’s picture; and both made belittling comments about the principal’s sexuality or sexual behavior. In both cases, school officials suspended the offending students, and in both cases the Third Circuit Court of Appeals ruled that the Facebook profiles did not disrupt school campuses and thus were constitutionally protected forms of expression.

In the third case, Kowalski v. Berkeley County Schools (2011), a student created a discussion site on MySpace that targeted a classmate for ridicule. Students posted comments the Fourth Circuit Court of Appeals said were defamatory. The Fourth Circuit, in a sensible opinion, ruled the discussion site violated the school’s policies against harassment and bullying, that the postings interfered with the victim’s ability to learn, and that school officials could reasonably anticipate that this mean-spirited internet attack on a vulnerable student would disrupt the school environment. Thus, the Fourth Circuit ruled, the school could punish the student who created the online ruckus without violating the First Amendment.

Finally, a Second Circuit decision, Doninger v. Niehoff (2011), involved a Connecticut high school student who stirred up a minor turmoil at her school by protesting the possible cancellation of a school function through e-mail messages and a blog posting. In one communication, she referred to school administrators as “douche bags” (p. 341).  School officials administered a very minor sanction for her online messages, which the Second Circuit upheld.

As these recent decisions illustrate, the federal courts have sent confusing messages about the authority of school officials to sanction students for online speech that demeans classmates or adult educators. Nevertheless, we make five broad observations about the student online-speech cases that lead us to conclude that school officials should be constitutionally empowered to punish students who use online speech to degrade their classmates, their teachers, or school administrators.


First, as a recent study (Dryden, 2010) found, most of the court decisions in the area of students’ online speech have involved student internet attacks on teachers and principals, not other students. Although the press has focused on cyberbullying incidents against students, litigation so far has mostly concerned online attacks on adult educators. Thus, a critical constitutional question is this: What constitutional authority, if any, do school authorities have to punish students who use social media to undermine the authority of the teachers and principals when the online attacks do not create actual disruptions in the school environment? Based on federal court decisions that have been rendered so far, the answer may be none at all.

Second, virtually none of the student internet speech cases involved speech on a matter of public concern. On the contrary, almost every case involved sophomoric online comments by immature adolescents that belittle and ridicule other people in their school communities—school principals, teachers, or other students.  Judge Richard Posner noted in a 2008 decision that high-school students have made only a modest contribution to the marketplace of ideas (Nuxoll v. Indian Prairie School District, 2008, p. 671). When it comes to some student internet speech—the contribution to the marketplace of ideas is very close to zero.

Third, American courts have long protected robust speech and have refused to allow a “heckler’s veto” to silence someone who voices a controversial or unpopular opinion. Thus, hurt feelings do not provide a constitutional ground for suppressing speech. Nevertheless, the Supreme Court recognized more than 25 years ago that the free speech rights of students must sometimes give way to society’s interest in teaching students the boundaries of socially appropriate behavior (Bethel School District v. Fraser, 1986). In the school environment, where the learning process depends on decorum and respect, the harmful effect of online attacks on students and educators cannot be underestimated. For a student to use social media to insinuate that a principal is a pedophile or a fellow student is a slut is hurtful, socially inappropriate, and destructive to the learning atmosphere. To its credit, this key reality was grasped by the Fourth Circuit Court of Appeals in the Kowalski case.

Fourth, if the courts do not allow school authorities to respond to students’ online hurtful speech, a victim’s only recourse is the civil courts, and that would not be a good thing. Perhaps a student who is called a slut or a principal who is described as a sexual libertine can sue for defamation, but is that the best way to deal with cyberbullying and cyberharassment? We think it makes more sense for schools to have the authority to discipline students who humiliate and debase other students or adults in the school community rather than force victims to seek redress in the courts.  

Fifth, taken as a whole, the lesson students are learning from some of the student online speech cases is that they have a constitutional right to engage in hurtful speech that supersedes the authority of the schools to maintain a respectful atmosphere for learning where students and teachers are not bullied or harassed.


In our opinion, the five tenets just described are incontrovertible.  And if we are correct about that, we do not understand why a federal court would uphold the right of a high school student to publically debase anyone in the school community, especially students, in the name of the First Amendment. In any event, the nation’s school leaders need clear guidance from the Supreme Court about their authority to discipline students who use social media in the harmful ways that were described in the four federal court decisions that the Supreme Court refused to review.  If the Court continues to duck this issue, then it will have decided to leave the public schools in confusion about a student’s right to engage in hateful internet speech.


Bethel School District v. Fraser, 478 U.S. 675 (1986).

Doninger v. Niehoff, 642 F.3d 334 (2d Cir. 2011), cert. denied, 132 S. Ct. 499 (2011).

Dryden, J. (2010). School Authority over off-campus student expression in the electronic age: Finding balance between students’ constitutional right to free speech and the interest of schools in protecting school personnel and other students from cyber-bullying, defamation and abuse (Doctoral dissertation). University of North Texas, Denton, TX

Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011), cert. denied, 132 S. Ct. 1095 (2012).

J.S. v. Blue Mountain School District, 650 F.3d 915 (3d Cir.  2011), cert. denied, 132 S. Ct. 1097 (2012).

Layshock v. Hermitage School District, 650 F.3d 205 (3d Cir.  2011), cert. denied, 132 S. Ct. 1097 (2012).

McCarthy, M. (2012). Student electronic expression: Unanswered questions persist, Education Law Reporter, 1-12.

Nuxoll v. Indian Prairie School District, 523 F.3d 668 (7th Cir. 2008).

Cite This Article as: Teachers College Record, Date Published: October 26, 2012
https://www.tcrecord.org ID Number: 16914, Date Accessed: 12/4/2021 6:02:02 PM

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About the Author
  • Richard Fossey
    University of Louisiana
    E-mail Author
    RICHARD FOSSEY is the Paul Burdin Endowed Professor of Education at the University of Louisiana, Lafayette, Louisiana.
  • Todd DeMitchell
    University of New Hampshire
    E-mail Author
    TODD A. DEMITCHELL is Professor in the Department of Education and Lamberton Professor in the Justice Studies Program at the University of New Hampshire, Durham, University.
  • Suzanne Eckes
    Indiana University
    SUZANNE ECKES is Associate Professor at Indiana University, Bloomington, Indiana.
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