Beverly Hills (Speech) Cop II: Surprise, You’re Suspended!

In a previous post, we looked at how a California student successfully argued that the First Amendment protected her against school discipline for insulting a classmate in a video she posted on YouTube. But that’s not the end of the story.

The student, referred to in court papers only as “J.C.,” challenged the suspension on two grounds: (1) the First Amendment, and (2) the Due Process Clause. The Due Process Clause requires that the government give fair notice and a fair opportunity for appeal when it takes away a benefit, including the ability to attend public school. And it is that latter argument that has the greatest potential usefulness for students who find themselves facing school misconduct charges for what they say online.

As the SPLC’s Krista Gesaman wrote last spring, a successful due process challenge requires proving either that the student did not receive notice and an opportunity for appeal proportionate to the severity of the penalty, or proving that the regulation under which the student was punished is so vague or nonsensical that it failed to give fair notice of what conduct could trigger punishment. For instance, a federal court ruled in Miller v. Penn Manor Sch. Dist., 588 F.Supp.2d 606, 611 (E.D. Pa. 2008), that a rule against “distracting” attire was unconstitutionally vague when applied to a Pennsylvania high school student who wore a T-shirt bearing violent anti-terrorist images.

In the newly decided Beverly Hills case, J.C.’s principal at Beverly Vista School suspended her for two days, alleging that her coarse YouTube video violated two sections of the student handbook. The first rule prohibited disruption of school, citing as an example “inappropriate classroom conduct.” The other banned the use of vulgar, obscene or harassing language.

U.S. District Judge Stephen V. Wilson examined both rules — and the types of behavior given as examples of prohibited conduct — and found that neither rule gave students fair warning that off-campus conduct could be treated as a violation. “[A] person of average intelligence would not believe that conduct such as ‘profanity’ or ‘lack of respect for other students’ that occurs outside of school could be a basis for school discipline,” Wilson wrote in his December 8, 2009 order.

His decision was made simpler by the school district’s own regulations, which provided in part, “A pupil should not be suspended or expelled … unless that act is related to school activity or school attendance occurring within a school under the jurisdiction of the superintendent of the school district or principal.”

Although Judge Wilson’s ruling is not binding legal precedent — and still may be challenged on appeal — it furnishes a useful road map for students who believe they have been wrongfully punished for speech on blogs, news Web sites or social networking pages.

Many school districts have not fully updated their disciplinary codes to take account of the Internet era. Others have updated their policies, but have recognized the dubious constitutionality of punishing students for off-campus expression and have, by their own terms, limited the reach of school discipline to events with a physical connection to campus. In either situation, students (and their legal counsel) should be mindful that a Due Process challenge may carry the day even if the student’s conduct pushes the boundaries of what courts are prepared to protect under the First Amendment.