The increase of internet usage by students has created new issues for schools concerning a school’s ability to discipline students for inappropriate online conduct.  One critical aspect in determining if discipline is warranted is if the activity took place on campus, using school resources, or off-campus.  In general, schools have the ability to discipline students for their on-campus online conduct; however, disciplining students for their off-campus online conduct could be deemed a violation of a student’s First Amendment rights.

Student Discipline for On-Campus Conduct

Schools are required to regulate student misconduct that takes place on campus, including at school-sponsored events.  The obligation to regulate student misconduct includes technology-related infractions that occur on campus or with school resources.  Bullying, harassment, cheating, and disruptions to the school environment are just some examples of the issues that have evolved through the use of technology.  Bullying and harassment can now take place by using technology such as networking sites like Facebook, text messaging, phone calls, or emails.  Additionally, students can use cell phones to cheat and cause disruptions throughout the school day.  It is important that a school incorporates these potential infractions into their existing code of conduct.

A major factor to consider in regulating a student’s online conduct is the First Amendment.  Public schools must be careful when attempting to regulate the speech of their students and staff.  However, while students retain their First Amendment rights in a public school, the right is neither absolute nor limitless.  In Tinker v. Des Moines, the Supreme Court held that “[n]either students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  After Tinker, school administrators, generally, cannot discipline students for the content of their speech, unless the content is:

  • Obscene, lewd, or plainly offensive;
  • Promotes illegal activity; or
  • Creates a material disruption to the school environment.

The same principles are used to assess the use of school-sponsored technology and resources by students to express themselves.  Schools have control over when and how school property is used, including school-sponsored technology.  It is important for a school to inform students regarding the appropriate use of school-sponsored technology, including email and internet use.  One method of ensuring that students understand appropriate technology use is a clear and comprehensive Technology Use policy.

 Do Schools Have the Authority to Discipline a Student for Misconduct Outside of School?

In order for a school to have the authority to regulate off-campus online conduct, there must be a connection between the misconduct and the education environment.  A school administrator must be able to connect the student’s off-campus conduct with a material disruption to the educational environment.  If the clear connection does not exist, the school administrator may not have the authority to discipline the student.  Schools should include a statement in their student conduct policies and procedures that they extend to student’s conduct on the way to and from school each day, and at other times that the school may lawfully exercise its jurisdiction over the student.

Can You Regulate a Student’s Online Speech, if the Student is at Home, and Not Using School Resources?

Even though schools are faced with offensive, inappropriate, and threatening items students may create on their personal web pages, Facebook postings, and blogs, if the items are created at home and without the use of school resources, the school is limited in its discipline for these forms of student expression.  If the off-campus online conduct is offensive or obscene, but cannot be linked to a material disruption of the school environment, a school will likely not have the authority to discipline the student.

A court is more likely to hold that disciplining a student for off-campus online conduct is not a violation of the student’s First Amendment rights if the school can articulate a substantial disruption to the school environment.  The disruption must go beyond the content of a webpage being offensive.  A stronger case for a “substantial disruption” is made when the speech infringes on the rights of others, such as bullying and harassment of other students, or the speech contains a threat to an individual’s safety.

These situations are rarely “clear-cut” or easily evaluated.  Schools are encouraged to contact an attorney for advice regarding any specific student discipline issue involving off campus use of social media.  This article is intended to be a general discussion about student discipline and social media and is not intended to provide legal advice regarding a particular incident.

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Kimberly R. Davis at  480.461.5387, log on to udallshumway.com,  or contact an attorney in your area.