"At this point, the school is no longer involved with this situation," she wrote. "The students have served their suspensions, and any legal action will come from the individual employees."
Students have First Amendment rights but that doesn't necessarily give them the right to say whatever they want online. Courts have allowed schools to restrict student speech under certain circumstances, such as when the speech causes substantial disruption to the school day. The Supreme Court recently dismissed a student's civil rights lawsuit filed after he was suspended for displaying a "Bong Hits 4 Jesus" banner at a school-sanctioned event.
But when the speech takes place on the Internet, it makes the case more complicated, said Hudson, the First Amendment scholar. Hudson emphasized that in order for school districts to punish students for their online activity, the student speech has to be under the school's jurisdiction.
Deciding what speech is under school control is "hazy," because students often create the Web pages at home and not on school grounds. Schools can still argue that false social networking pages cause substantial disruption to the school day or invade the rights of others.
The question of where the speech took place was central to Doninger's case, which is pending before the Second Circuit Court of Appeals. After they discovered her blog post, school officials wouldn't allow Doninger to serve as senior class secretary and speak at graduation. A trial court judge denied Doninger's request for a court order forcing the school to allow her to serve on the school council.
Regional School District 10 Superintendent Alan Beitman said he did not know whether Doninger would be allowed to speak at commencement.
Doninger said that though she does not regret her blog post, she wishes that she had chosen her words more carefully. "I don't think I should have said that word," she said. "It was political speech and it's good that I was lobbying for community support, but I could have used more sophisticated language."
Hudson said that in many cases schools should leave the punishment to parents. "I think expulsion is a bit overkill," he said. "I think that perhaps some instruction on responsible Internet use may be appropriate."