[author: Jackie Wernz]

One final issue that we delved into at TechCon 2012 last month was discipline of students for off-campus, online misconduct. Stories of schools wrangling with the issue of whether they can discipline students for such misconduct are common, such the recent issue in Granite City, Illinois, in which a school reportedly suspended 21 students, including honor roll students and the homecoming king, for Tweeting, re-Tweeting, or “favoriting” Tweets including one making sexual comments about a female teacher. At TechCon, we discussed a couple of other interesting examples: students taking unflattering photographs of teachers and posting them online and students doing the same with videos of off-campus fights between other students. I made a shameless self-promotion at the presentation and suggested that participants read my recent blog post, Eighth Circuit: School Discipline of Missouri Students For Inflammatory Website Constitutionally Sound, to get some background on the issue. And we discussed that these questions are very fact-specific and must be considered individually as they arise. But we also discussed that school leaders generally need to ask themselves the following three questions with respect to discipline of off-campus, online misconduct.

1. Does school board policy allow for discipline of the type of speech in question? 

In all cases where discipline is imposed, including for off-campus, online misconduct, it is essential that the district have a clear policy allowing for discipline of the type of activity in question. Even if a school district may discipline a student without infringing on his First Amendment rights, the district still may face challenges if its policy does not allow—or does not clearly allow—for that discipline. 

2. Is there a sufficient connection between the off-campus, online speech and the school environment? 

A sufficient connection, or “nexus,” exists between the off-campus, online speech and the school where it is reasonably foreseeable that the speech would reach and impact the school community. This is a very fact-specific analysis, but here are a few examples of questions that can help you determine whether a sufficient connection exists:

• Were the materials made “public” so they could be viewed by anyone on the Internet?
• Even if the materials were “private,” was access allowed to other students?
• Even if the materials were “private,” were they specifically aimed at the school environment in a way that would lead someone to reasonably expect members of the school community to find out about them?

3. Is the speech of the type that can be disciplined in the school context?

Once it is established that the speech can be disciplined under school board policy and that there is a sufficient nexus with the school, the question becomes: Can the speech be disciplined under the First Amendment?

If the speech is “unprotected” speech under the First Amendment it can be disciplined, period. But there are only a few categories of speech that are unprotected, and they are quite rare. One example is speech encouraging illegal drug use, which the Supreme Court in a 2007 case (Morse v. Frederick) held could be disciplined in the school context.

Even if the speech is protected by the First Amendment, it can also be disciplined in the school context if it causes a substantial disruption or invasion of the rights of others, or causes a reasonable risk of a substantial disruption or invasion of the rights of others.

What does that mean? Like the connection/nexus inquiry, the issue is very fact-specific and should be dealt with on a case-by-case basis. The list of questions to ask is long, and the best person to guide you through the process is your school attorney. But here are a few questions that could suggest a substantial disruption if the answer is “yes”:

• Are the materials misleading or false, in a manner that would create a need for the school district to actively correct the misinformation?
• Is there evidence of a past disruption in a similar circumstance?
• Have a number of staff members or students expressed anxiety about the online materials or their safety because of the online material, or missed significant amounts of class because of their concerns about the material?

After discussing these standards for discipline, we also discussed what can (and should) be done if students cannot be disciplined for off-campus, online misconduct. School districts may still be required to respond to the misconduct, particularly if it is pervasive or relates to a protected characteristic such as race, sex, or disability. I suggested that participants review a recent Franczek Radelet Alert (and an OCR letter cited therein) that talks about responses that school districts can (and in some cases must) take in response to bullying and harassment, including online bullying and harassment. Notably, OCR made clear that these responses are available, and may even be required, even if the students who are responsible for the bullying and harassment cannot be disciplined.