Off-Campus Student Misconduct: What Can School Officials Really Do?

Many school officials have received this dreaded Monday morning phone call: Over the weekend, two students engaged in misconduct off school grounds and parents want to know what the school is going to do about it.

Whether the school has authority to discipline students involved in off-campus misconduct is a highly fact-specific inquiry that depends on the nature of the misconduct and the nexus between it and the school.  A school does not have the authority to discipline solely because a student committed the misconduct.

To discipline students for off-campus misconduct, the school must be able to show that the misconduct directly impacted the school. Without this nexus, courts likely will overturn any discipline imposed. 

Student Expression

Speech (including a social media post) that is not a “true threat” or did not create a substantial disruption is subject to First Amendment protections and cannot result in discipline. School officials may discipline students if their expressive activity creates a substantial disruption of the educational environment or if school officials can reasonably forecast a substantial disruption.

 Courts generally are reluctant to authorize schools to discipline students for off-campus speech. In 2021, the U.S. Supreme Court ruled that the First Amendment protected profane Snapchats sent by a high school cheerleader from her personal phone to friends while off-campus and outside school hours. Accordingly, the school could not lawfully discipline the student for the messages.

The U.S. Supreme Court, however, identified examples of off-campus student speech where 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;
• failure to follow rules about lessons, assignments, computer use, or other online school activities; and
• breach of school security devices.

In considering whether discipline for off-campus speech is permissible, the U.S. Supreme Court identified three features that school officials should carefully consider:

1. For off-campus speech, the school will rarely stand “in loco parentis” (i.e. in the place of a parent) and likely will not have authority to discipline;
2. Courts should be more skeptical of schools regulating off-campus speech, especially off-campus religious or political speech, because it suggests that all of a student’s speech in a given day could 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.

Ultimately, school officials should exercise caution when policing off-campus student expression, including social media posts, as doing so may violate a student’s First Amendment rights.

Criminal Sexual Conduct

The Revised School Code (RSC) grants authority to schools to suspend or expel a student who commits off-campus criminal sexual conduct (as defined by Michigan’s Penal Code) against another student within the district. It also mandates, subject to the seven mitigating factors, the permanent expulsion of a student who “pleads to, is convicted of, or is adjudicated for criminal sexual conduct” against another student in the district.

If a student commits criminal sexual conduct against another district student – even if off campus and with no nexus or impact on the school setting – school officials must comply with the RSC’s discipline provisions.

Exclusively off-campus criminal sexual conduct does not implicate Title IX, as Title IX’s jurisdiction is limited to a school’s educational program or activity. As is the case with all off-campus misconduct, if some part of the misconduct flows into the school setting, then Title IX or related board policies may be implicated.

Closing Thoughts

There is no bright-line rule for disciplining students for off-campus misconduct. Instead, we recommend that school officials carefully review the facts underlying the misconduct, including who was involved, what occurred, and what impact the misconduct had on the school setting. As always, please contact a Thrun student issues attorney if you have questions about off-campus misconduct.