When can a school discipline a student for online speech? A school may discipline a student for online speech only if certain requirements are satisfied.  Online speech can include such things as student web pages, postings, blogs, and social media activity (think Instagram, Twitter, Tumblr).  A student’s online speech may be subject to discipline by the his or her school if the speech has a nexus with the school and is likely to, or does in fact, cause a material disruption of the school environment.

The standard was set back in 1969, when the U.S. Supreme Court issued the landmark decision of Tinker v. Des Moines, 393 U.S. 503 (1969).  In Tinker, the Supreme Court held that school administrators cannot discipline students for the content of their speech at school unless the following factors are satisfied:

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

Flash forward forty four years – In 2013, the Ninth Circuit Court of Appeals issued a seminal decision on student online speech in Wynar v. Douglas County Sch. Dist., 728 F.3d 1062 (9th Cir. 2013).   In Wynar, the student sent a string of violent and threatening instant messages on a social media website from his home to his friends.  Student’s messages were specific, referenced his arsenal of weapons, names of students he intended to harm, and gave a date for when he intended to cause harm.    When the school was notified of the messages, it expelled the student.   The Court still used Tinker in its analysis, and held in favor of the school.  The Court found that there was a clear nexus between the student’s instant messages and the school, and that it was reasonably foreseeable to student that his messages would reach the school campus.  Of interest, the Court commented that the school should have provided or arranged for counseling for student, regardless of the expulsion.

The issue was addressed even more recently by the federal District Court in Oregon in April 2015, in the case of Burge v. Colton Sch. Dist..  In Burge, a middle school student posted derogatory comments on Facebook from his home computer, regarding a teacher who gave him a poor grade.  In one post, the student wrote that the teacher “needs to be shot.”    Student’s parent found the Facebook posts within twenty four hours and made student taken them down.  No one saw the posts except for a few of student’s friends.; the teacher referenced never saw the posts. But six weeks later someone left a print-out of the Facebook posts for student’s principal and student was suspended for 3 ½ days.  The Court held that the student’s Facebook posts did not trigger the school’s ability to discipline for speech.  In part the Court found that the student’s comments were vague, obviously jokes, and removed in time, thus there was no imminent threat to the school, and the nexus between the student’s speech and the school was thus too tenuous.  Burge v. Colton Sch. Dist., ___ F. Supp. 3d ___, 2015 WL 1757161 (D. Or. 2015).

If administration believes there is a credible threat to a school, they should contact law enforcement immediately, as well as the school district’s legal counsel.  Then comes the weighing of the student’s First Amendment rights to free expression, the nexus between the speech and the school, and the likelihood of a disruption of the educational environment.

 

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 Erin H. Walz at 480.461.5379, log on to www.udallshumway.com or contact an attorney in your area.