Back to Basics: Student Speech

In light of the recent landmark U.S. Supreme Court decision in Mahanoy Area Sch Dist v BL, this month’s Back to Basics article covers student speech.

Legal Standards

A series of U.S. Supreme Court decisions establish the legal standards for student speech: (1) schools may prohibit on-campus speech that is lewd, vulgar, or profane, Bethel Sch Dist v Fraser (1986); (2) schools may regulate school-sponsored speech for legitimate peda­gogical concerns, Hazelwood Sch Dist v Kuhlmeier (1988); (3) schools may prohibit speech that encourages illegal drug use, Morse v Frederick (2007); and (4) all other student speech may only be regulated if it substantially disrupts school operations or interferes with the rights of others, or if school officials can reasonably forecast a disruption, Tinker v Des Moines Indep Sch Dist (1969).

On-Campus versus Off-Campus Speech

In Tinker, the Supreme Court recognized that public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court held that schools need not tolerate student speech that causes, or that school officials reasonably forecast may cause, a substantial disruption or material interference with school activities. The Supreme Court also has upheld student discipline for vulgar, lewd, and plainly offensive student speech made at school or a school-related activity, finding that a school need not tolerate on-campus speech that is inconsistent with its “basic educational mission.”

Disciplining a student for off-campus speech requires further consideration. If the off-campus speech is not a true threat directed at the school, or does not substantially disrupt school operations, any discipline imposed for the off-campus speech will likely be overturned. Merely referencing the school in off-campus speech is not a sufficient nexus to support the imposition of discipline.

Threats

School officials may discipline a student for speech in accordance with the student handbook and board policy when the speech is determined to be a “true threat” against the school. A “true threat” is a statement where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence against a particular individual or group. “True threats” are not protected by the First Amendment.

When student speech does not rise to the level of a true threat, school officials still may discipline a student if the speech meets the Tinker standard, meaning it creates a substantial disruption to the school environment or school officials can reasonably forecast a substantial disruption to the school setting. In other words, if school officials do not believe that the student meant to convey a true threat, but the student’s speech still substantially disrupts the school (e.g., the speech causes a lockdown or results in students staying home due to fear), the student may be disciplined for the disruptive speech. Any discipline must, of course, be issued in accordance with the student handbook, board policy, and state and federal law.

Legally evaluating student speech involves fact-intensive analysis. Importantly, not every statement about violence is a true threat. Before disciplining a student for allegedly threatening speech, school officials should consider the following:

1. Did the student intend for the speech to reach the school community?
2. Did the student intend to harm the school community?
3. Does the student have the ability to carry out the threat?
4. Did the threat substantially disrupt the school setting, or can school officials reasonably forecast that the school setting will be substantially disrupted?

If school officials cannot answer “yes” to at least one of these questions above, issuing discipline likely would violate the First Amendment and could result in costly litigation, payment of a student’s attorney’s fees, and, in some cases, personal liability for an administrator or teacher.

Recent Supreme Court Decision and Off-Campus Speech

In Mahanoy, the U.S. Supreme Court ruled that the First Amendment’s free speech clause protects profane Snapchats sent by a high school cheerleader from her personal phone to her friends while off-campus and outside school hours. Accordingly, the school could not discipline her for the messages.

The Court did not rule, however, that schools may never discipline students for off-campus speech. While not providing any blanket rules, the Court identified examples of off-campus student speech for which school officials may, depending on the circumstances, be authorized to impose discipline, including:

• Serious or severe bullying or harassment targeting particular students;
• Threats directed at teachers or other students;
• Failing to follow rules about lessons, the writing of papers, the use of computers, or participating in other online schooling activities; and
• Breaching school security devices.

The Court also identified three factors that school officials should consider when evaluating whether to issue discipline for off-campus speech:

1. For off-campus speech, the school “will rarely stand in loco parentis [in the place of the parent];”
2. Courts should be more skeptical of schools regulating off-campus speech, especially offcampus religious or political speech, because regulating off-campus speech means all of a student’s speech in a given day can be regulated by the school; and
3. Schools have an interest in protecting a student’s unpopular expression, “especially” when that speech occurs off-campus.

Participation in extracurricular activities is a privilege, not a right, and participants can be held to a higher standard than other students. Mahanoy made it clear, however, that conditioning participation on relinquishing First Amendment rights is not legal. Courts are unlikely to uphold extracurricular discipline if such discipline violates the First Amendment.

School officials who investigate and respond to student speech concerns must consider all available facts – most importantly facts related to the disruption that the student speech may or may not have caused. When in doubt, consult with legal counsel before issuing discipline.