California School News — March 2018
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Can a school discipline students for an off-campus social media post?

The U.S. Supreme Court ruled in 1969 in Tinker v. Des Moines Independent Community School District that the First Amendment applied to public schools and schools could not censor student speech that did not disrupt the educational process. The Court found that the students’ black armbands protesting the Vietnam War were not disruptive and famously wrote that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” These constitutional protections are embedded in California’s Education Code section 48907, which gives public school students in California broad free speech rights, including “the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications.”

These laws provide school districts with important boundaries and guidelines for addressing student freedom of speech and freedom of expression, balancing student freedoms with school disruption. However, the constant evolution in types of speech and venues for expression for students leaves school districts at times facing difficult decisions without guidance from California law — it’s fair to say that the Supreme Court in Tinker did not give explicit guidance to school districts on how to compare armbands to Instagram posts. When a student posts a derogatory or offensive social media post about another student, can the school discipline that student? Can the school discipline the students who “like” the post?

In Shen v. Albany Unified School District, decided on Nov. 29, 2017, a Northern California district court provided guidance for a school’s ability to discipline students for off-campus social media use.

In Shen, a high school student created an Instagram account that posted offensive content directed at African-American students and staff members, posting racist and derogatory comments and imagery such as nooses and white hoods. The school expelled the student who created the posts and suspended students who liked, commented approvingly and followed the posts. The legal question for the court was whether the students’ Instagram activity was protected from school discipline by the First Amendment.

The constitutional speech rights of students are not automatically the same as that of adults in other settings. The courts recognize that schools must achieve a balance between protecting the safety and well-being of students and respecting students’ constitutional rights. Under Tinker, school speech may be constitutionally restricted only if it risks a substantial disruption of the school environment or violates the rights of other students to be secure.

The court in Shen found that a school could expel and suspend students for racist and derogatory social media posts targeted at other students, as well as writing approving comments on or “liking” the posts, even if the social media interaction occurred off campus. The court found that while even offensive social media posts have First Amendment protections, case law makes clear that “students have the right to be free of online posts that denigrate their race, ethnicity or physical appearance, or threaten violence. They have an equivalent right to enjoy an education in a civil, secure, and safe school environment.” The offensive content was seen by students and caused substantial disruption on campus, as students were “visibly distraught and agitated” at school. The court further found that students who commented approvingly or “liked” the posts had “meaningfully contributed to the disruption” at the high school, adding to the stress of the targeted students.

The court limited its ruling somewhat, and did not uphold the school’s decision to discipline students who had simply “followed” the derogatory social media account or “liked” posts that did not target specific individuals, as the court found their actions were not proven to contribute to the disruption at the high school.

Although not controlling in other courts, Shen is one of the first decisions to analyze school discipline due to off-campus social media use under the First Amendment and provides persuasive guidance to school districts and courts for future decisions. The court’s decision is available at CSBA Sample Board Policy 5145.2 provides additional guidance for school boards and county boards of education on student freedoms of speech and expression.