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Appeals Court Backs School in Missouri Student-Speech Case

A student web site containing racist and sexist content caused disruption at a Missouri high school and was likely not protected speech under the First Amendment, a federal appeals court has ruled.

A three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, on Wednesday unanimously overturned a federal district court's preliminary injunction that had allowed two brothers at Lee's Summit North High School who were suspended for creating the web site to return to the school.

The case involves twin brothers Sean and Steven Wilson, who created a web site called NorthPress in December 2011 that contained a blog meant to discuss, satirize, and "vent" about events at Lee's Summit North High, court papers say. The 8th Circuit characterized the blog as containing several racist and sexist comments, including sexist remarks about female students at the high school. The blog posts were evidently created by the Wilson brothers, though a separate racist comment was allegedly posted by a third student. (Unfortunately, the 8th Circuit's opinion does not give any further specifics about the blog's content.)

Administrators at the high school contend the NorthPress web site caused a substantial disruption on Dec. 16, 2011. Teachers had difficulty managing their classrooms, and two teachers described it as the most disruptive day they had experienced in their careers, the district argued. Administrators quickly identified the Wilsons as the creator of the site, and they discovered that school computers were used to upload some files used in the creation of the site, and that school computers were used to access the site multiple times. The Wilsons were suspended for 10 days initially, and later for 180 days each. They were allowed to attend another district school during their suspensions.

The Wilsons sued the district, arguing that their web site was protected free speech and that any disruption at the school was caused mainly by the third student's racist posting. They testified at a hearing that they were not racists and that the purpose of the web site was satire and commentary about the school. They sought a preliminary injunction to return to Lee's Summit North, since the alternative school did not offer music and other curriculum offerings that interested them.

A federal district judge granted the preliminary injunction this past March and the Wilsons returned to Lee's Summit North High. The judge gave somewhat conflicting views on whether the web site was likely protected free speech, but held that the twins faced potential irreparable harm from not being able to take band and certain honors courses at the alternative school.

The school district appealed, and in its Oct. 17 decision in S.J.W. v. Lee's Summit R-7 School District, the 8th Circuit court panel ruled for the district. The court accepted a finding of the district court that the NorthPress web site was "targeted at" Lee's Summit North High, and thus the case should be analyzed under the U.S. Supreme Court's landmark 1969 decision in Tinker v. Des Moines Independent Community School District.

That decision upheld student speech rights as long as there was no substantial disruption of school. The 8th Circuit court also discussed a spate of recent federal appeals court decisions about whether students could be punished for online speech critical of administrators or other students.

"The NorthPress posts could reasonably be expected to reach the school or impact the environment," the 8th Circuit panel said. "Under Tinker, speech which actually caused a substantial disruption to the educational environment is not protected by the First Amendment. Therefore, the Wilsons are unlikely to succeed on the merits."

The appeals court dismissed the twins' claim of irreparable harm from their suspension, saying that the alternative school was an accredited school that would allow them to graduate in time in June 2013 and any claim that not being able to participate in band would harm their purported interest in careers as musicians was "speculative."

The appeals court did not order the reinstatement of the Wilsons' suspensions, or their return to the alternative school. It left to the district court "the unenviable task of fashioning a remedy several months after the entry of the injunction and the Wilsons' return to school."

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