The Harlem Shake is a popular dance video that has spawned hundreds of thousands of imitators. For those of you unfamiliar with the dance craze, a few of my favorite versions can be found here, here, and here. The videos usually feature a person dancing alone, then a group joining in wildly after a change in the song's beat. There are costumes. And gyrations.
Students across the country have been quick to join in on the fad. A search for "Harlem Shake high school" on YouTube returns almost 30,000 videos. Some of these videos have been viewed on YouTube hundreds of thousands of times.
But not everyone is a fan.
According to the National Coalition Against Censorship (NCAC), students from districts across the nation have been disciplined for their involvement in Harlem Shake videos. The NCAC maintains a list on its website of those students who have been suspended.
There are no clear legal rules that govern a district's ability to regulate and discipline students who participate in these videos. In my opinion, this falls into a category with other student censorship cases, like those where students have been disciplined for publishing their thoughts on blogs or Facebook. Courts around the country have seen an increase in these types of cases over the past few years, and although the U.S. Supreme Court has yet to weigh in, we offer the following suggestions based on feedback from courts that have ruled on these issues:
- Review your student code of conduct. School boards are required to adopt policies that specify the type of misconduct for which a student may be suspended, expelled or removed. If the student's conduct in the video falls squarely into one of the prohibited types of misconduct, the district may regulate that behavior.
- Don't discipline students just because you hate the Harlem Shake. Generally, school administrators cannot discipline students for the content of their speech, unless the content is obscene, lewd or plainly offensive; promotes an illegal activity; or creates a substantial disruption of or material interference with school activities.
- Be careful when disciplining students for videos that were created off-campus. In order for a school to have the authority to regulate off-campus conduct, there must be a nexus between the alleged misconduct and the education environment. If the district is interested in disciplining students for a Harlem Shake video that was created off-campus, the district should be prepared to demonstrate how that off-campus conduct caused a substantial disruption to the district. In most cases, even if the district finds the video to be offensive, it may be difficult to discipline students where the video cannot be linked to a material disruption of the school environment.
If you have general questions about the district's ability to discipline students, please contact OSBA's division of legal services. If you have specific situations that may necessitate legal advice, please contact your board's attorney.
In the meantime, start preparing yourself for the next student-led craze. Although you can never really predict such things, my money is on this.