Following on the heels of two recent decisions by the Federal Court of Appeals for the Third Circuit (which we addressed in a FR Alert in June), three additional federal courts issued opinions addressing the right of school districts to discipline students for off-campus, online speech.
All of the cases applied the familiar standard from Tinker v. Des Moines School District, a 1969 United States Supreme Court decision. Under this standard, school administrators may discipline students for protected speech when it is related to the school program and when it causes or is reasonably likely to cause material and substantial disruption to the educational environment. The following outlines some of the lessons that can be drawn about the substantial disruption standard from the cases.
Lesson 1: To establish that the speech is related to school, look at what steps a student took to keep electronic communications “private” or otherwise to limit their reach into the school environment. In Kowalski v. Berkeley County Schools, the Fourth Circuit Court of Appeals found a sufficient nexus and allowed discipline where a student created a webpage “for the purpose of inviting others to indulge in disruptive and hateful conduct,” even though her webpage was set to “private.” The student invited more than 100 people from her MySpace “friends” list (including classmates) to join a group created to bully another student. If a student takes steps to keep content private, in contrast, there may not be a sufficient nexus to discipline off campus, online speech.
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