Question
Our six children have been enrolled in our community public schools since 1992. Three of our children have already graduated, one is graduating this year and on will be graduating in 2019.
With the advent of mobile communications, Facebook, Twitter, Instagram, etc the administrations at the middle and high schools have become increasingly dictatorial about student uses of social media after school hours and off school property.
The high school principal met with students at the beginning of the 2014-2015 school year and advised the children that the school had the capability to read their personal texts and the authority to discipline them for things they say on social media that the school administrators find inappropriate. Even if the social media posts are within the parameters of protected speech.
Last spring my son was suspended for participating with others on Twitter who were tweeting jokes about Adolf Hitler’s birthday. The principal called the police and a detective from Ventura County Sheriff’s Department of Major Crimes came to our home to investigate allegations sent in an anonymous email to hundreds of local people and religious leader as well as school administrators and the media.
Eventually the police learned the entire email was a work of fiction and subsequently told the School District officials as much. However the district stood by their ruling and publicly praised themselves for punishing a group of kids who were essentially cyber bullied. Recently when a teenage girl from a neighboring community posted a photograph of herself without makeup on social media with the caption “who needs makeup?”, an equally young boy commented simply “you do.” For this he was brought in front of the school principal and formally admonished.
What I need to know is how are school districts getting away with this and what kind of attorney is advising districts like mine that they are free to trample on Students Civil Rights? Help!!
Answer
Your inquiry raises some interesting questions regarding the First Amendment and what is commonly referred to as “student speech.” While students do not “shed their constitutional rights to freedom of speech and expression at the schoolhouse gate,” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969), the First Amendment rights of public school students “are not automatically coextensive with the rights of adults in other settings.” Bethel School District No. 403 v. Fraser, 478 U.S. 675, 682 (1986).
The United States Supreme Court has decided four key student speech cases:
In Tinker, the Court held that school discipline is appropriate where the facts “reasonably [lead] school authorities to forecast substantial disruption of or material interference with school activities” as a result of the student’s speech. Tinker, 393 U.S. at 514.
In Fraser, the Court held that there is no First Amendment protection for lewd, vulgar, or patently offensive speech that occurs in schools. Fraser, 478 U.S. at 682.
In Hazelwood School District v. Kulhmeier, 484 U.S. 260 (1988), the Court held that a school can “exercise] editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Hazelwood, 484 U.S. at 273.
And, in Morse v. Frederick, 551 U.S. 393 (2007), the Court held that a school may restrict “student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use.” 551 U.S. at 403.
While the Supreme Court has not yet addressed the factual situation you present in your inquiry – whether a school can regulate student speech that occurs outside the schoolhouse gates and which is not connected to a school-sponsored activity – several lower courts have held that schools “may regulate such speech under Tinker, if the speech causes or is reasonably likely to cause a material and substantial disruption of school activities.” J.C. v. Beverly Hills Unified School District, 711 F. Supp. 2d 1094, 1103 (C.D. Ca. 2010).
Whether speech is likely to cause a material and substantial disruption is necessarily a fact specific inquiry.
In J.C., the United States District Court for the Central District of California dealt with an issue similar to the second one you described in your inquiry.
In that case, the plaintiff (J.C., a minor) and some friends gathered at a local restaurant after school. At the restaurant, J.C. recorded a video of her friends talking meanly about a classmate – calling her ugly and spoiled, among other things.
Later that evening, at home, J.C. posted the video to YouTube and contacted both friends and the person being talked about telling them to view the video. Because of these actions, the Plaintiff was suspended from school for two days. Plaintiff sued the School District, contending that it violated his/her First Amendment rights. 711 F. Supp. 2d at 1098-1100.
Two aspects of the Court’s decision are noteworthy:
First, the Court found that “the substantial weight of authority indicates that geographic boundaries generally carry little weight in the student-speech analysis” and that “here the foreseeable risk of a substantial disruption is established, discipline for such speech is permissible.” Id. at 1104.
Second, the Court stated that “the decision to discipline speech must be supported by the existence of specific facts that could reasonably lead school officials to forecast disruption” and that “the fact that students are discussing the speech at issue is not sufficient to create a substantial disruption….” Id. at 1111. In J.C., the Court determined that “no reasonable jury could conclude that J.C.’s YouTube video caused a substantial disruption to school activities, or that there was a reasonably foreseeable risk of substantial disruption as a result of the YouTube video.” Id. at 1117.
Other cases related to this topic that may be of interest to you are Wynar v. Douglas County School District, 728 F.3d 1062 (9th Cir. 2013) and Roasio v. Clark County School District, No. 2:13-CV-362, 2013 WL 3679375 (D. Nev. 2013).
In Wynar, the School District suspended the plaintiff student for 90 days because of “a string of increasingly violent and threatening instant messages sent from his home to his friends,” which “presented a real risk of significant disruption to school activities and interfered with the rights of other students.” 728 F.3d at 1064-65.
The Court, in Wynar, held that the School District did not violate the student’s First Amendment rights because it was “reasonable for school officials to forecast a substantial disruption of school activities.” Id. at 1067.
In Roasio, the student plaintiff was initially suspended and then transferred to another school district for several tweets posted on Twitter about school officials. Roasio, 2013 WL 3679375, at *1.
Holding that the plaintiff’s complaint survived the defendants’ motion to dismiss, the Court found that “the reach of school administrators when disciplining students for off-campus speech … depends on the facts.” Id. at *5. In reaching this conclusion, the Court analyzed other circuit court decisions regarding the issue, which you might also find of interest.
With regard to your inquiry, the school administrators stating that they have the authority to discipline students for social media posts that they find inappropriate is somewhat concerning, especially given the above case law.
Unless the speech reasonably causes school authorities to believe that there will be a “substantial disruption of or material interference with school activities,” that speech is likely to be considered protected by the First Amendment.
You might want to write to the school administrators reminding them of the students’ First Amendment rights.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.
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