Social Media and Student Discipline
The Landmark Tinker case has guided whether a school can punish a student for speech, but that soon may change. Over the past decade, the use of social media has exploded and students are often choosing social media as their mode of expression. When posts are reported, school officials struggle to enforce rules while not limiting the 1st Amendment rights of students.
In Tinker, the Court ruled that if the speech would cause a “substantial disruption” to the school day then administrators could act. The Court has also made exceptions to the Tinker Test (lewd and indecent speech, promotion of drugs, and true threats) but most of those cases do not deal with speech that takes place outside of school.
This summer the Court will take the issue of off-campus social media post head-on. In Mahanoy Area School District v. B.L., Ms. Levy posted a Snapchat photo with the text “Fuck school, fuck softball, fuck cheer, fuck everything” after she failed to make the varsity cheerleading team. After it was reported to the coach he suspended her from the junior varsity team for one year. Ms. Levy was successful in being placed back on the team after decisions by lower courts but the school has appealed.
While this will be the first time that the Supreme Court has directly dealt with this type of speech as it affects schools, several of the circuits have already developed tests that the Court may consider adopting. For example, the 8th Circuit looked at whether the speech was reasonably foreseeable to affect school, the 4th Circuit looked at whether there was a connection or “nexus” between the speech and the school community and the 9th Circuit has incorporated both factors in developing their test.
Looking more closely at lower court cases the results have varied. However, when the students bring the school into the cause of action then the courts have supported discipline by school officials. (1) Concurrently, when there is a true threat of violence the origin of the speech does not limits the school's ability to discipline students. (2) See Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008); Wynar v. Douglas City School District 61, 728 F.3d 1062 (9th Cir. 2013).
Unfortunately for the school in Ms. Levy's case, there was no actual threat nor was there appear to be a substantial disruption to the school day. The school may hinge their hopes on the heightened standard that has traditionally been supported so long as the conduct is related to the extra-curricular activity, there was prior notice and supported by written agreement. Regardless we will likely have a better answer soon so check back for the update in this case.
Guidance For Schools
1. Focus discipline on violation of established school policy.
a. Most AUP’s in TN (Policy 4.406) restrict certain electronic speech during the school day.
b. In districts that provide devices (One-To-One), schools may limit content and speech that occurs out of school through district devices.
2. Make certain that your district is current with CIPA (Child’s Internet Protection Act).
3. Focus discipline in accordance with T.C.A. 49-6-4502 for speech that is used to bully or harass other students.
4. Be cautious about monitoring student social media accounts. Students should not be forced to provide access to private accounts but school may look at publicly available post when investigating a violation subject to the Tinker Test, the aforementioned exceptions or any applicable state law.
UPDATE - Please See Professor Hudson’s Article Summarizing The Courts Opinion HERE
Footnotes
1. Wynar v. Douglas City School District 61, 728 F.3d 1062 (9th Cir. 2013).
2. Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008)