N.J. court: Schools can’t withhold extracurriculars to play “good behavior police” for off-campus misconduct

When schools seek to punish students’ off-campus behavior on blogs and social networking sites, their “penalty of choice” often is revoking students’ eligibility for sports, honor societies and other extracurricular activities.

That’s because judges generally have given schools almost unlimited latitude to decide who may take part in after-school clubs that aren’t considered central to the free public education to which every student is legally entitled.

But a new ruling from a New Jersey appellate court torpedoes that distinction, and calls into question schools’ widespread practice of withholding extracurricular activities to punish uncivil speech on the Web.

In G.D.M. and T.A.M. v. Board of Education of Ramapo Indian Hills Regional School District, the Superior Court Appellate Division decided 3-0 that a school district could not lawfully enforce a regulation disqualifying students from after-school activities on the grounds of off-campus criminal or delinquent behavior.

In its July 24 ruling, the court said New Jersey law lets schools punish off-campus behavior only if it “materially and substantially interferes with the requirements of appropriate discipline in the operation of the school.” Because the Ramapo Indiana Hills policy imposed punishment for any violation of the law — even jaywalking or littering — it expanded the power of principals beyond what New Jersey law allows.

The school district tried to argue that removal from extracurriculars is not “punishment” because clubs and sports are a privilege and not a right. But the court was not buying it.

Under New Jersey law, “consequences” cannot be imposed without some jurisdictional connection to the school, and — the court observed — “there is no requirement that a ‘consequence’ be of any particular magnitude,” so even the loss of a privilege qualifies as a “consequence.”

The G.D.M. case was brought by the parents of an Indian Hills High School student who refused to sign the student handbook at the start of the 2009-10 school year because she and her family believed that the district had expanded its disciplinary authority too broadly. The state Commissioner of Education ruled in the parents’ favor, and Tuesday’s ruling affirms the commissioner’s decision.

The ruling does not affect the enforceability of New Jersey’s 2011 “cyberbullying” law, the Anti-Bullying Bill of Rights. That’s because the bullying law requires a jurisdictional connection to the school — it applies only to off-campus conduct that “substantially disrupts or interferes with the orderly operation of the school or the rights of other students.”

It still is unclear whether “substantially disruptive” speech on an off-campus website can lawfully be punished in New Jersey schools. That’s because the Third Circuit U.S. Court of Appeals (which covers New Jersey) issued a ruling in 2011 questioning whether the Supreme Court’s Tinker standard — the legal standard that allows for punishment of on-campus speech that substantially disrupts school — can be applied to a student’s online speech created off campus on personal time.

Five of the circuit’s judges asserted that off-campus speech is entitled to heightened protection above-and-beyond Tinker, though the court reached no firm consensus.

Tuesday’s court ruling was based only on New Jersey education law, and it did not address federal constitutional issues.

The G.D.M. ruling is noteworthy because, in recent history, courts have given schools a free hand to punish students with disqualification from extracurricular activities, even when the justification appeared questionable:

  • In Lowery v. Euverard, the Sixth Circuit U.S. Court of Appeals decided that a school could kick four students off the football team for circulating a petition seeking the removal of an unpopular coach. The court afforded only minimal First Amendment protection to the speech of students in their role as football team members, ruling that “there is a difference between the way a school relates to the student body at large, and to students who voluntarily ‘go out’ for athletic teams.”
  • In Doe v. Silsbee Independent School District, the Fifth Circuit U.S. Court of Appeals ruled that a high school cheerleader could be removed from the squad for refusing to stand up and perform a cheer in honor of a star basketball player who, the cheerleader had told police, raped her at a party. The court found no constitutional violation because the student was deprived only of her participation in cheerleading, stating that students “do not possess a constitutionally protected interest in their participation in extracurricular activities.”

But last August, an Indiana federal judge rejected a school district’s argument that extracurricular privileges could be withdrawn without satisfying the normal constitutional standards that would apply when schools punish students for what they say.

In T.V. v. Smith-Green Community School Corporation, two student-athletes were disciplined for posting a slumber-party video on YouTube in which they goosed each other with penis-shaped lollipops. The principal considered their behavior a violation of a school policy that is alarmingly commonplace in its vagueness and breadth: “If you act in a manner in school or out of school that brings discredit or dishonor upon yourself or your school, you may be removed from extracurricular activities for all or part of the year.”

A U.S. district judge held that the same First Amendment limitations applied to school discipline whether the punishment was expulsion or merely disqualification from clubs and sports: “[A] student cannot be punished with a ban from extracurricular activities for non-disruptive speech.”

Schools may attempt to end-run rulings such as T.V. by requiring students to sign “good behavior contracts” as a prerequisite to taking part in extracurriculars, and then imposing punishment on the grounds of a breach of contract. But (especially after the G.D.M. ruling) it’s doubtful that such a contract is enforceable.

A student cannot be forced to sign away constitutional protections — and saying things that “dishonor” the school undeniably is constitutionally protected speech — in exchange for access to public education, since there is a constitutional right to receive an education. If taking part in clubs and sports is considered part of a constitutionally guaranteed public education, then any contract that conditions a student’s participation on forfeiting constitutional rights is null and void.