Education Law

When Can Schools Punish Students for Online or Off-Campus Speech?

By E.A. Gjelten, Author and Editor
The First Amendment doesn’t always protect what students put online—especially if it causes turmoil at school.

Students don’t lose their constitutional rights just by entering school grounds, but free speech is more limited at school than elsewhere. Courts have long recognized that administrators may punish students for some forms of expression on campus or at school activities—like vulgar language—that would be protected under the First Amendment if it took place outside of public school. But the line between on- and off-campus speech isn’t that clear anymore. That’s mostly because of how students use social media and mobile platforms to share their opinions, spread news, and—too often—bully their classmates. The U.S. Supreme Court hasn’t directly addressed this issue. But other courts across the country have come up with guidelines for deciding when schools can restrict students’ online or off-campus speech.

What’s the Connection?

In a landmark case on students’ right to freedom of expression, the Supreme Court said that schools may limit speech that creates a serious disruption at school or violates other students’ rights (Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969)). Based on that general principle, several courts have concluded that administrators can punish students for online communications that are:

  • closely linked to school (known as a “nexus”) and/or likely to reach the campus community, and
  • expected to disrupt school work or discipline.

For example, both those requirements were met when students:

  • created a social media page meant to get fellow students to harass a classmate (Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011))
  • sent classmates instant messages full of violent language about shooting other students at school (Wynar v. Douglas County School Dist., 728 F.3d 1062 (9th Cir. 2013))
  • wrote a blog with racist and sexually explicit, degrading comments about classmates that upset many students and disrupted classes (S.J.W. v. Lee’s Summit R-7 School Dist., 696 F.3d 771 (8th Cir. 2012)), and
  • posted an online video of a rap recording about two school coaches that was intended to reach fellow students and intimidated the coaches with threatening, violent language (Bell v. Itawamba County School Bd., 799 F.3d 379 (5th Cir. 2015)).

In contrast, some other examples of online speech that didn’t disrupt school activities—like fake social media profiles of principals—were protected under the First Amendment even though they were vulgar, embarassing, and caused discussion among other students (for instance, see Layshock v. Hermitage School Dist., 650 F.3d 205 (3d Cir. 2011)).

What About Off-Line, Off-Campus Speech?

We’ve seen that school officials may punish students for online speech that meets certain standards. At least one federal appellate court has used the same reasoning to find that administrators didn’t violate a seventh-grader’s First Amendment rights by disciplining him for sexually harassing two younger students on a path right outside school grounds. The harassment happened over several days while all of the children were leaving school, just minutes after classes ended. Not only that, administrators could expect that the effects of the harassment would carry over to school itself, making the victims feel unsafe on campus. (C.R. v. Eugene School Dist. 4J, 835 F.3d 1142 (9th Cir. 2017).)

Questions for Your Lawyer

  • What can I do if my daughter posted songs online to further her musical career—not to reach other students—but the principal claims the provocative content disturbed some overly sensitive classmates?
  • Several students at my son’s school created a ruckus when they decided one of the fictional stories on his blog was about them. Can I sue the school for violating my son’s free speech rights by suspending him?
  • Can administrators punish my child for making sexual remarks to a classmate when they were going home from a school event on a city bus?

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