Michigan High School Student Posted Threats on Instagram: #Disciplined

A Michigan federal court recently dismissed a claim that a school district violated the First Amendment when it suspended a student for impersonating his teacher on Instagram and posting violent and sexual content about other teachers. Kutchinski v Freeland Comm Sch Dist, Case No. 19-13810 (ED Mich, 2022).

H.K., a Freeland High School student, created an Instagram account pretending to be his teacher. The account’s profile identified the teacher by full name, high school, and class subject, and used the teacher’s actual image as the profile picture. Using the account, H.K. posted several violent, threatening, and sexually harassing entries about teachers, students, and their families. Most notably, H.K. posted pictures and names of other teachers, with captions and hashtags about killing one and having an affair with another. H.K. even tagged those teachers’ Instagram accounts, notifying them of the posts.

Upon discovering that H.K. was responsible for the account, the district suspended H.K. for ten days. H.K.’s parent sued the district, alleging that the suspension violated H.K.’s First Amendment free speech rights.

The federal court analyzed the case under the U.S. Supreme Court standards set forth in the Mahanoy and Tinker decisions. Applying Mahanoy, the court balanced the district’s interest in disciplining H.K. for the Instagram account against the off-campus features of his speech. The court noted that the posts aligned with the types of off-campus speech that the Mahanoy decision identified as calling for school regulation: “serious or severe bullying or harassment targeting particular individuals” and “threats aimed at teachers or other students.” Accordingly, the court found that the district had a significant interest in regulating H.K.’s off-campus speech.

Applying Tinker, H.K.’s parent argued that off-campus speech did not cause a material or substantial disruption at school. The court explained, however, that Tinker does not require a showing of actual disruption. Rather, “school officials have an affirmative duty not only to ameliorate the harmful effects of disruptions, but to prevent them from happening in the first place.” The Tinker standard does not require certainty; it only requires “the existence of facts which might reasonably lead school officials to forecast substantial disruption.”

The court took into account that the teachers who were named and depicted in the posts reported that the matter affected their ability to teach, that students approached them to ask about the posts, and that students neglected their schoolwork to gossip about the posts. The court concluded that, based on the reaction of the students and teachers, school officials reasonably forecasted a substantial disruption and did not violate H.K.’s free speech rights.

This decision shows that targeted threats, even if made off campus or in jest, may be subject to discipline. Courts have generally treated off-campus threats, real or perceived, differently than off-campus profane posts about the school in general. Still, policing social media and disciplining students for off-campus speech requires a fact-specific analysis.