13 Sep Ninth Circuit Clarifies When Public Schools Can Discipline Off-Campus Speech
Those of us of a certain age remember schools being unaware of bullying or indifferent to it. But for the last decade American schools have increasingly sought to prevent and punish various forms of bullying, motivated both by a concern for student well-being and effective educational environments and a by well-founded fear of liability.
A public school’s right to punish students to enforce campus discipline is well-established, even when the offending behavior involves speech. The Supreme Court’s 1969 decision in Tinker v. Des Moines — which famously said that students do not shed their rights at the schoolhouse gate — was the high-water mark for student free speech rights. Since then, the Court has offered increasingly broad deference to schools’ right to discipline students for speech that authorities view as potentially disruptive.
Under that precedent, schools’ freedom to discipline on-campus speech is clear and, many argue, alarmingly broad. But the status of off-campus speech and conduct is not as clear. In fact, in a world where students are glued to social media most of the day, the distinction between on- and off-campus is itself not perfectly clear. Is a post on Facebook or Snapchat on-campus or off? Does it depend on where it was written, or where it has an impact?
This month, the Ninth Circuit offered a framework for approaching this problem. Though the case does not involve online speech, its methodology should guide how courts will address online issues.
The case is C.R. v. Eugene School District 4J, a case out of the District of Oregon. C.R. was an elementary student accused of bullying younger students with sexual innuendo in a park adjacent to the school after class. The school district punished C.R., and he sued through his parents, claiming that the school had violated (among other things) his First Amendment rights by disciplining him for off-campus speech. The Ninth Circuit held that the Supreme Court has made it clear what kind of speech schools may regulate on-campus: vulgar and lewd speech, school-sponsored speech (as in a school-sponsored newspaper), speech promoting illegal drug use, and speech that disrupts education. But the Supreme Court hasn’t clarified schools’ authority to punish off-campus speech.
Following its own prior rulings in cases like Wynar v. Douglas Cty Sch. Dist., 728 F.3d 1062, 1067 (9th Cir. 2013), the Ninth Circuit articulated a two-part test to identify off-campus speech that schools may potentially punish without violating First Amendment rights. First the court will examine the nexus between the speech and the school. Here, for instance, C.R. engaged in conduct towards fellow students immediately following school in a park adjacent to school that many students used to travel to and from the school; the Ninth Circuit held that this nexus was strong enough to allow the school to discipline for the conduct. Second, the court will examine reasonable foreseeability — whether the school can reasonably foresee that the speech’s effects will “spill over into the school environment.” Here, the Court found that the bulling was causing disruption in the school because the victims were afraid and talked about it at school. Either of these two factors justifies a school addressing off-campus speech.
However, a school can’t automatically punish speech just because it satisfies either the nexus or reasonable foreseeability test. The Ninth Circuit emphasized that the school’s discipline must still satisfy the Tinker test: the school must be able to show that the speech “might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities,” or that it “collides with the rights of other students to be secure and to be let alone.” Once again, the Ninth Circuit found that the bullying here met that test.
The “nexus” and “reasonable foreseeability” test are both flexible and appear to continue the trend of giving schools broad discretion to punish student speech. However, the Ninth Circuit did offer some cautionary language that suggests that it will not allow schools to discipline any off-campus speech or conduct just because it involves students. Faced with C.R.’s argument that the Court’s standard would allow schools to take over discipline of student squabbles in public places like shopping malls or bookstores, the Court emphasized the facts of this case — that the bullying took place adjacent to the school, immediately following school, in a place that the victims could not easily avoid. That language suggests the Ninth Circuit may not rush to permit schools to punish speech when its targets can opt out of it. For now, the decision offers useful clarity, if not the result that free speech advocates hoped for.
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