With the rising use of social media, it is becoming more difficult for school districts to know when to intervene with online issues involving students. When should a school district address off-campus social media posts between students? Should they be involved in disciplining pupils who have engaged in social media misconduct? Where is the balance between a student’s First Amendment right to free speech and the district’s goals of protecting students and providing a safe and nurturing school environment for learning?

The U.S. Supreme Court first recognized students’ free speech rights in Tinker v. Des Moines Indep. Comm. School Dist. In that case, the court ruled in favor of students, saying that schools cannot regulate student speech unless it materially or substantially interferes with the operations of the school or impinges on the rights of others. In the context of social media student speech, courts have struggled with the issue of whether the Tinker substantial disruption test applies if the speech occurs outside of the school and doesn’t involve the use of school resources or property. Most of the case law from the federal appellate courts suggests that the regulation of such student speech is appropriate under Tinker if a district can show some nexus between the speech and the school, and/or some form of disruption (or the reasonable likelihood of such disruption) to the district from such speech.

The following are examples where courts have used the Tinker test to determine whether districts could discipline a student for social media communications occurring outside of school:

  • A high school student from a West Virginia high school created a MySpace account that ridiculed another classmate. This student shared the page with more than 100 other students, who used school computers to access the page. The student who created the page was given a 5-day suspension and a 90-day “social suspension” from attending school facilitated events. Although the court recognized that the U.S. Constitution protects free speech and expression even when “society finds the idea itself offensive,” it upheld the student’s suspension, finding that the MySpace page affected the school environment because the student who created the page specifically knew and intended for the speech to reach the schools and its students and the post was materially and substantially disruptive to the school environment. 
  • A student at a Mississippi high school created and shared an original rap recording on his public Facebook and YouTube accounts. The rap included threatening statements made to two of the high school’s teachers. The school board gave the student a suspension and transferred him to an alternative school for the rest of the grading period. The U.S Court of Appeals for the Fifth Circuit ruled that the conduct by the student caused disruption and an invasion of others’ rights and could not be supported by the constitutional guarantee of freedom of speech. The court found that the school officials’ response to the issue was not caused just by the “mere desire to avoid discomfort and unpleasantness,” but rather that the two teachers involved were actually fearful for their own safety.
  • A student at a Minnesota high school was asked on a website whether he had “made out” with a teacher at the school. He tweeted in reply, while outside of school, “Actually, yeah.” He said he made the comment in jest. Nonetheless, the district suspended him. The court rejected the district’s request to dismiss the case, because it questioned whether the speech created such a disruption as to permit the district imposing discipline. The court noted that just because the off-school speech referenced student and teacher sexual conduct, it didn’t necessarily make it likely that the speech would reach school and cause a significant disruption.

For any questions regarding this issue, please call the division of legal services. For specific legal advice, please contact your district’s legal counsel.

*OSBA wishes to thank Olentangy Liberty High School student and OSBA mentee Jessie Padovano for her contributions to this article.

Posted by Sara C. Clark on 2/14/2018