Document Type

Article

Abstract

The Article's first two parts discuss the extent to which schools can legally restrict hostile student speech about school officials, should they choose to do so. Part I examines how courts have traditionally approached hostile student speech about school officials when it occurs at school, and Part II then considers how courts have been analyzing the issue when it moves off campus. In the course of this discussion, the Article identifies three key categories of such speech: (1) speech that arguably threatens toward a school official; (2) speech that is primarily vulgar about a school official; and (3) the most complex category: speech that, while expressing non-threatening hostility toward a school official, also expresses a substantive viewpoint about that official's behavior. Part I shows that courts are quite consistent in recognizing schools' authority to restrict all three categories of negative speech about school officials when it occurs on-campus-even though they are not always clear or consistent as to why. By contrast, Part II shows that courts are tremendously conflicted about what to do when such speech originates beyond the school, particularly with respect to the latter two categories. Indeed, on February 4, 2010, two different Third Circuit panels issued such divergent opinions in remarkably similar cases involving students who had created fake MySpace profiles for school officials that the court ultimately reheard the cases en banc on June 3, 2010.

Having surveyed the landscape regarding schools' potential liability if they do act to restrict students' hostile speech about school officials, the Article then looks at the issue from the opposite perspective: the limitations on schools' ability to refrain from acting in the face of student speech that is hostile toward school officials. It initially considers this issue from a legal standpoint, in two different respects: Part III.A analyzes the extent to which state anti-bullying laws require schools to take action against speech that can be considered “bullying” toward school officials, and Part III.B considers whether school officials-who are, after all, school district employees-might in certain circumstances be able to sue their school districts for failing to protect them from students' hostile speech. Part IV then considers the issue from a psychological standpoint, evaluating whether there are risks to the effective functioning of a school when students' verbal hostility toward school officials goes unchecked. Taken together, these parts of the Article indicate that school districts *594 are unlikely to face liability for declining to restrict students' verbal attacks on school officials, particularly when those attacks originate off-campus, but that some such speech can nonetheless undermine the efficacy of the school environment.

After discussing the legal and educational constraints on schools' abilities both to act and not to act in response to students' negative speech about school officials, this Article attempts in Part V to weave together the relevant concerns into a standard that preserves students' ability to express dissenting views about school policies and issues while giving schools the authority to restrict student speech that is primarily threatening or harassing. This section concludes that the on-campus/off-campus distinction, while important, should be less central to the analysis than the content of the speech itself.