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Student online speech rights on and off campus: if off-campus online speech presents the likelihood of a disruption on campus, administrators can respond by disciplining the responsible students.

Students do not "shed their rights to freedom of speech and expression at the schoolhouse gate."

--Tinker v. Des Moines, 393 U.S. 503 (1969)

Nearly 50 years ago,

Justice Abe Fortas penned those words when the U.S. Supreme Court overturned a school's action to discipline students who wore black armbands to protest the Vietnam War. Justice Fortas' opinion held that administrators could discipline a student only when they could reasonably forecast that the student's speech would cause a substantial disruption to the school.

The language of "schoolhouse gate" seems archaic today. The boundaries of speech today really don't rest on the physical boundaries of the "schoolhouse gate." We are no longer just faced with the students' right to speech in the school hallways. What about their rights vis-a-vis the school when they are outside of the "schoolhouse gate" sitting at home or in a coffee shop blogging, tweeting, and posting? Does the school have any control or recourse when students post and text after school hours on their own devices and outside the physical confines of the school? Justice Fortas could not have been thinking about a Facebook post when he penned those landmark words. However outdated the court's language may seem now, its overarching conclusion is still very relevant today.

In terms of student speech on campus, schools clearly have the authority to limit speech that is disruptive, lewd or vulgar, or encourages the use of illegal drugs. When the speech is off-campus, a school's authority is not so clear. Do schools have the authority to discipline students for speech that was created or emanated off school grounds?

Most often, a student's off-campus behavior must connect in some way to the school before administrators have the authority to control the behavior. Generally, the school cannot discipline a student for something that occurred away from school. Some courts have expressed this as needing a nexus: There must be some connection between the student's actions and the school to allow the school to discipline the student. Courts ask if the student's off-campus speech or behavior is tied to the school's educational interests. Can a student be suspended for an off-campus assault? No. Can a student be suspended for an assault between two students on the way to or from school? Yes, there is a connection between the school and behavior in that instance.

Electronic speech

For student electronic speech, the courts seem to be taking a more direct approach. If the student's behavior creates a disruption --or there is a reasonable expectation that the behavior would create a disruption--in the school, then administrators can control or punish the student for the behavior. The disruption (or reasonable expectation of a disruption) provides the nexus, which gives the school the authority to respond to the student's behavior through disciplinary action even though the behavior technically occurred off school grounds.

For example, in Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011), cert. den., 132 S. Ct. 1095 (2012), a student created a web page called SASH (Students Against Sluts Herpes), which was dedicated to ridiculing a fellow student. Pictures of the student and demeaning comments about her were posted on the site. The school disciplined the student who created the site by invoking the district's hate speech and harassment policy. The appeals court upheld the discipline, finding that schools have an obligation to protect students from harassment and bullying in the school environment. Kowalski claimed the school could not discipline her because she created the site off campus. The court disagreed and pointed out that the student "knew that the electronic response would be, as it in fact was, published beyond her home and could reasonably be expected to reach the school or impact the school environment. She also knew that the dialogue would and did take place among ... students ... and that the fallout from her conduct and the speech within the group would be felt in the school itself." The student's intent to disrupt the school environment was achieved. Causing the disruption is the sanctionable action. The court agreed that the school should be able to discipline the student for disrupting the school, even though the speech technically occurred off campus.

Applying Tinker

The Tinker case contains more than just the landmark quaint quote about the "schoolhouse gate." You can understand the parameters of a school's authority for off-campus electronic speech by looking back at the court's language in Tinker. The court said that "conduct by the student, in class or out of it, which for any reason--whether it stems from time, place, or type of behavior--materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech" (Tinker, 393 U.S. at 513).

Some courts have specifically used this language to provide schools the authority to control off-campus electronic speech. For example:

* In Wynar v. Douglas County School District, 728 F.3d 1062 (9th Cir. 2013), a student posted instant messages to his friends, bragging about his weapons, threatening to shoot students, and alluding to the Virginia Tech University shootings. The court upheld the student's disciplinary suspension, saying "the messages, which threatened the safety of the school and its students, both interfered with the rights of other students and made it reasonable for school officials to forecast a substantial disruption of school activities. When faced with an identifiable threat of school violence, schools may take disciplinary action in response to off-campus speech that meets the requirements of Tinker."

* In Bell v. Itawamba County School Board, 799 F.3d 379 (5th Cir. 2015), a student recorded a music track at a professional studio and posted it on YouTube and Facebook. The posted recording used vulgar and violent lyrics to criticize school personnel. The Fifth Circuit Court of Appeals found that Tinker could apply to speech both on and off campus. The court upheld the student discipline because the school had a reasonable forecast of a disruption of the school based on the threatening, intimidating, and harassing language in the posted recording.

* In Burge v. Colton School District 53, 100 F. Supp.3d 1057 (D. Oregon 2015), the student had posted a series of comments on his Facebook page on a day school was not in session. He said he was going to start a petition to get the teacher fired. His language escalated with him saying the teacher "needs to be shot." At the insistence of his mother, he deleted the messages from his Facebook page. Nothing else happened. But six weeks later, someone anonymously put a printed copy of the posts in the principal's school mailbox. The student was suspended. The federal district court overturned the discipline. The court applied the Tinker standard and found that the behavior had not caused a disruption in the school. The teacher was nervous when she first learned of the comments from the principal, but she continued teaching, and the student remained a student in her classroom. The off-campus online rant, which had occurred six weeks prior, did not cause a disruption in the school and thus the school could not discipline the student for that action.

The courts generally have found that schools may sanction misbehavior where the off-campus electronic conduct was directed somehow at the school with the intent or likelihood that the communication would result in a substantial disruption within the school. That Abe Fortas was a pretty smart guy.

JULIE UNDERWOOD (Julie. is the Susan Engeleiter Professor of Education Law, Policy, and Practice at the University of Wisconsin-Madison.


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Title Annotation:Under the Law
Author:Underwood, Julie
Publication:Phi Delta Kappan
Geographic Code:1USA
Date:Dec 1, 2016
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