If you follow my writing, you know that recently I have developed a passion for discussing court cases that involve students using social media. It is an interesting frontier of the law and one which is begging for Supreme Court guidance. Without that, districts are muddling through, faced daily with decisions about whether particular student actions can be handled at the school level and attempting to get guidance from contradictory court decisions being handed down in various federal and state courts. So loyal readers, I ask you, can Emma Sullivan be disciplined by her school? If you are not familiar with Emma, read on. I will lay out the basic facts of her situation and you can apply what you have learned to make a determination.

Facts:  Emma Sullivan is now an eighteen year-old media sensation. Barely a week ago, she was an unknownKansasteenager who was visitingTopeka,Kansasas part of the Youth in Government program. Emma is a high school senior who is awaiting word from theUniversityofArkansasto see if she is accepted in the fall. Emma is also a Democrat who found herself being addressed by Governor Brownback, a Republican legislator who Emma felt had made excessive cuts to state programs, particularly education.

During Brownback’s address, Emma tweeted

Just made mean comments at gov brownback and told him he sucked, in person #heblowsalot.

Unbeknownst to Emma, Brownback’s staff monitors all tweets, even ones sent out by an eighteen year-old seniors with only sixty Twitter followers. Upset by Emma’s tweet, Brownback staffers contacted Emma’s school, sending a screen captured picture of Emma’s post.

So, Tuesday morning Emma was summoned to the principal’s office to be, yes, you guessed, it disciplined by the administrator, Karl Karwitz. According to Emma, Mr. Karwitz “laid into” her, telling her that her behavior was “unacceptable and an embarassment.” He told her that she had created a huge controversy and how upset everyone was by what she had done. He futher expressed his upset that he was going to have to do “damage control.”

As a consequence for her behavior, Emma was told that she must write apology letters to all concerned for her behavior. an action which she originally reported that she was planning to take. Now though, with the media firestorm that has ensued, Emma appears to have changed her position on writing the letters, as they did not appear after the break, and she has expressed that she is no longer so sure she will comply.

So, can Emma be disciplined? Or, to frame the question differently, can the principal force Emma to write the letters or give further consequences for her failure to do so?

Analysis:  How should such a question by analyzed? Well, hopefully my readers are now versed in this type of analysis. In analyzing school speech issues, the relevant test is known as the Tinker standard. Tinker was a case in which students wore black arm bands to protestAmerica’s involvement in the Vietnam War. They were disciplined by the school, sued, and the case reached the Supreme Court.

There, the standard that has guided all subsequent k-12 school speech issues was formulated. Under Tinker, in order to silence or discipline for student expression, an administrator must show, based on evidence and not an “unsubstantiated fear or apprehension of disturbance,” that the student expression would lead to either (a) a substantial disruption of the school environment, or (b) an invasion of the rights of others. 

Applying this analysis to the facts currently at hand, it becomes clear that if this case goes to court (it currently has not) that the school distict and the administrator are unlikely to prevail. First, no actual disruption happened. The school did not experience any student disruption based on her comments. Second, it is highly unlikely that it will. In other cases I have discussed, I have shown that administrators need to have evidence of at least potential disruption. Here, based on the current facts, none is in evidence. Principal Karwitz, in his admonition delivered to Emma, did not point to upset to the student body, but rather to outside entities (the Governor’s office).

A further factor here is the nature of Emma’s speech. It is strictly political; it is the type of speech that has rightfully been given the Court’s strongest protection. With the facts at hand though, if it ever went to trial, counsel for district would surely argue Fraser, a case in which a high school student gave a sexual innuendo laced speech in favor of his high school friend’s candidacy for school office. Fraser argued that his speech was political, like Tinker, but the Court held that his vulgar speech during a school-sponsored event was not the “pure” political speech of Tinker.

In its Fraser opinion, the Court set up a balancing test, stating that the

freedom to advocate unpopular and controversial views in school and classrooms must be balanced against society’s countervailing interest in teaching students the boundaries of socially approvpriate behavior.

This distinction is important due to Emma’s choice of the tagline “#heblowsalot,” which could be argued to be sexual innuendo and vulgar. Here though, a court would likely side with Emma since, standing alone, it can be construed an non-sexual since the term has entered the common vernacular as meaning inferior quality. In Fraser, the sexual innuendos were many and flagrant.

A further issue here, although never really addressed by a court decision of which I’m aware, is that Emma is eighteen. An underlying theme, but one never stated, is that minors are not mature enough to handle full free speech rights. Here, Emma is an adult, and as such, should be afforded more latitude for speech.

So, if Emma’s case ever reached the court system, it is highly unlikely that Emma could be disciplined for her actions.

Gregory Branch is a teacher and attorney who practices in the area of educational law. He may be reached at gregorybranch@edrightsadvocate.com.