Student Discipline for Off-Campus Speech in the New Digital Era: What Parents Should Know

“Today, students are connected to each other through email, instant messaging, blogs, social networking sites, and text messages. An email can be sent to dozens or hundreds of other students by hitting ‘send.’ A blog entry posted on a site such as livejournal.com can be instantaneously viewed by students, teachers, and administrators alike. Off-campus speech can become on-campus speech with the click of a mouse.”

What’s a parent to do?

Students today are equipped with electronic devices that keep them in immediate and continuous contact with fellow students. It is virtually impossible to control (or even monitor) the content of outgoing texts, tweets, IM’s, and emails, and absolutely impossible to censor the content of incoming messages. As a result, “the line between on-campus and off-campus speech is blurred” as are the “outer bounds of administrators’ authority to punish student speech . . . .” While there are fewer “bright lines” there are things parents should know if their child’s off-campus use of social media (as is becoming increasingly frequent) forms the subject of student discipline. There is also recent judicial guidance available as to what to tell your child about potential school discipline related cyberspace pitfalls that must be avoided. The purpose of this article is to make parents at least as well-informed as school administrators in the area of permissible student discipline for off-campus, social-networking speech.

Where We Came From

Prior law with respect to students’ First Amendment rights used to be relatively well-settled and fairly predictable. Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The constitutional rights of public school students, however, “are not automatically coextensive with the rights of adults in other settings.” In Tinker, the United States Supreme Court said that student rights must be applied in a manner consistent with the “special characteristics of the school environment,” and that school administrators may prohibit student expression that will “materially and substantially disrupt the work and discipline of the school.” Because schools are responsible for “teaching students the boundaries of socially appropriate behavior,” otherwise constitutionally protected but offensive speech by an adult may when uttered by a student, give rise to disciplinary action by a school. Educators are also permitted to exercise editorial control over “school-sponsored expressive activities such as school publications or theatrical productions.” Most recently, the Supreme Court has allowed public school administrators to “take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use.”

The Tinker, Fraser, Hazelwood trilogy of cases was once thought to provide parents and teachers with a viable and stable framework for reconciling student rights of free speech with educators’ rights to maintain good order and discipline. Maybe in 1988, but no more.

Where We Are Now

A recent Federal Court case from Connecticut has shone a spotlight on the difficulty of trying to extrapolate existing law onto the realities of student access to and use of social media. The case began as Doninger v. Niehoff, 514 F. Supp. 2d 199 (D. Conn. 2007) (“Doninger I”) and has a torturous procedural and checkered appellate history. Doninger I was affirmed by Doninger v. Niehoff, 527 F. 3d 41 (2d Cir. 2008) (“Doninger II”). The case was continued, seeking monetary relief, Doninger v. Niehoff, 594 F. Supp 2d 211 (D. Conn. 2009) (“Doninger III”). On appeal, Doninger III was affirmed in part and reversed in part by Doninger v. Niehoff, 2011 U.S. App. LEXIS 8441 (2d Cir. Apr. 25, 2011)(“Doninger IV”). The most important aspect of this serpentine procedural and appellate route is that Doninger arose out of the United States District Court for the District of Connecticut and has made two trips to the United States Court of Appeals for the Second Circuit. Thus, to the extent the Second Circuit has ruled on issues of law in Doninger II and IV, such precedent is binding on the Connecticut Federal Court and likely to receive highly deferential treatment from the Connecticut State Courts. It also illustrates how the availability and use of social media can cause a simmering dispute between students and educators to rapidly metastasize into an all-out war.

What the Future Holds

“[W]hen it comes to student cyber-speech, the lower courts are in complete disarray, handing down ad hoc decisions that, even when they reach an instinctively correct conclusion, lack consistent, controlling legal principles.”
The disjointed state of education law as it pertains to student discipline for off-campus speech was recently highlighted by two cases that arose in Pennsylvania. In each case, high school students were suspended after posting MySpace profiles of their respective principals, mocking them in lewd and salacious terms. Each of the student’s cases was heard by a different Federal District Judge sitting in different courthouses. In one case, the student’s suspension was upheld; in the other case, the Judge ruled in favor of the student. Each of the cases was independently appealed to the United States Court of Appeals for the Third Circuit, that hears appeals from Federal trial courts in Pennsylvania. The two separate three-judge panels (from within the same Circuit and applying the same law) issued conflicting decisions. That prompted the entire Third Circuit (consisting of 14 Federal appellate judges) to hear the cases anew, and in both cases find for the students. The focus of the Court’s decision appeared to be on the fact that one student’s speech, in particular, “did not cause a substantial disruption in the school.” This test differs from the Second Circuit test that requires only a “reasonable foreseeability of disruption in the school.” This sets the stage for the United States Supreme Court to hear a case that will allow it to resolve an apparent conflict between the Circuits. Until the Supreme Court speaks to the issue, parents and students will have to glean guidance from what the courts have said about imposing school discipline for off-campus speech.

Technology: A Two-Edged Sword

Parents and students should be aware that at least one company now exists that is capable of scouring the Internet for everything a person may have said or done online in the course of the last seven years. Despite initial concerns, the Federal Trade Commission has determined that the company’s activities are in compliance with the Federal Fair Credit Reporting Act. Less than a third of the data developed by the company comes from major social platforms such as Facebook, Twitter, and MySpace. Much of the information comes from deep web searches that find comments on blogs and posts on smaller social sites, like Tumblr and even Craigslist. Photos posted to sharing sites such as Flickr, Picasa, Yfrog, and Photobucket are also easily discoverable. The “terms of service” agreements on most sites make all comments and content publicly available.

While such company presently researches candidates for employment, rather than students, its import for the future is clear: nothing said or done on the Internet is private.

The Takeaway for Parents or Students

• Students retain their constitutional rights of freedom of speech or expression while in or out of school.
BUT:

• School administrators may prohibit student expression that will materially and substantially disrupt the work and discipline of the school.

• Educators are permitted to exercise editorial control over school-sponsored expressive activities such as school publications or theatrical productions.

• Public school administrators may take steps to safeguard students from speech that can reasonably be regarded as encouraging illegal drug use.

• A student may be disciplined for expressive conduct occurring off school grounds when such conduct would foreseeably create a risk of substantial disruption within the school environment, at least to the extent that it was similarly foreseeable that such off-campus expression might also reach campus.

• A school may regulate in the classroom “plainly offensive” speech, i.e., speech that is offensively lewd and indecent.

• Off-campus, the risk from student speech of substantial disruption within the school environment depends on a number of factors including the language used, the truth or falsity of the communication, and whether the student serves as a student government leader.

• Participation in extracurricular activities is a privilege and not a right.

SO, STUDENTS SHOULD PRESUME:

• That any electronic communication (e.g., text, tweet, email) or creation (e.g., MySpace profile) that can be forwarded beyond its initial addressee may be forwarded to parties unknown, or may be seen by teachers or school administrators. Electronic communication (i.e., one relating or referring to students, teachers, administrators, or school activities) can be expected to find its way “on-campus.” Going forward, with respect to electronic communications, students should presume no practical or legal difference between on and off-campus.

• What constitutes “substantial disruption within the school environment” depends entirely on the circumstances. Virtually any deviation from the daily routine resulting from a student communication can be described as “disruption” sufficient to support student discipline.

The Bottom Line

Any off-campus electronic communication relating or referring to students, teachers, administrators, or school activities has the potential to result in student discipline. As of now, the unsettled status of the law affords school administrators wide latitude in deciding when a student communication can be reasonably seen to create a foreseeable risk of academic disruption. Exclusion from extracurricular activities is now a judicially accepted punishment. Other types of student discipline may in the future also be countenanced by the courts. In the meantime, to be forewarned is to be forearmed.
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