Sixth Circuit Upholds Student Discipline for Harmful Off-Campus Speech

The Sixth Circuit Court of Appeals, whose decisions are binding in Michigan, recently rejected a claim that a school violated the First Amendment when it suspended a student for impersonating his teacher on Instagram and posting violent and sexual content regarding other teachers. Kutchinski v Freeland Cmty Sch Dist, Case No. 22-1748 (CA 6, 2023). We discussed the lower court’s decision in the September 2022 edition of School Law Notes.

Background

H.K., a high school student, created a fake Instagram account pretending to be one of his teachers. H.K. shared the account’s login information with two of his classmates, who added their own posts to the account. The students posted graphic, threatening, and harassing content about other teachers.

Upon discovering that H.K. was responsible for the account, the school district suspended H.K. for ten days.

H.K.’s parents sued the school district for allegedly violating H.K.’s First Amendment free speech rights. A federal court dismissed the claim. On appeal, the Sixth Circuit affirmed the lower court’s decision.

Court’s Analysis

The Sixth Circuit analyzed the parents’ free speech claim under the standards set forth by the U.S. Supreme Court in Tinker and Mahanoy. The court explained that, because the student speech in this case involved severe harassment of teachers, the school district could discipline H.K. for the speech provided that (1) H.K. bore responsibility for the speech and (2) the speech substantially disrupted, or the school district reasonably believed the speech would substantially disrupt, classwork.

The court held that a student could be held responsible for the speech of others when the student causes, contributes to, or affirmatively participates in the speech. Applying this new legal principle, the Sixth Circuit found that H.K. bore responsibility for the speech related to the Instagram account because he contributed to the speech by creating the account and granting account access to two classmates who used the account to post harmful content.

The court further held that the school district could reasonably anticipate that a fake Instagram account that impersonated a teacher and contained sexual and violent content about other teachers would cause a substantial disruption to the school environment. The Sixth Circuit also noted that actual disruption may have occurred, as the Instagram posts caused one of the targeted teachers to become visibly upset and multiple teachers reported disruptions in their classes.

Notably, the Sixth Circuit rejected the parents’ claim that H.K.’s Fourteenth Amendment due process rights were violated because the school district based H.K.’s suspension on an unconstitutionally vague rule in the student handbook. That rule provides that a student who is “guilty of gross misbehavior” would be suspended from school. The court held that the challenged rule was not unconstitutionally vague, explaining that schools have considerable latitude in drafting disciplinary rules.

Although disciplining students for off-campus speech requires a fact-specific analysis, this decision demonstrates that harassing or threatening off-campus speech may result in disruptions at school and therefore be subject to a school’s disciplinary authority.