It’s increasingly difficult to convince courts to second-guess the judgment of schools in disciplining students for what they say — even when the speech is created entirely off campus with no indication it was intended to be read at, or cause a disturbance at, the school. Nevertheless, it’s important for legal advocates to push back against the notion that schools have boundless authority over students’ off-campus personal behavior.
School lobbyists commonly argue that, without the authority to punish students for uncivil speech on the Web, they’ll be powerless to prevent violence. That’s nonsense. Schools can always remove potentially threatening students while investigating whether they mean serious harm, just as police can detain a suspected criminal for questioning. But too often, discipline is imposed even after it’s determined that a stray online comment was merely a misunderstood joke. Punishing non-dangerous people for jokes can’t be justified in the name of public safety.
In the most recent edition of the American Bar Association’s Children’s Rights Litigation newsletter, I’ve published an article describing some of the legislative overreactions to online cruelty and how those enactments might be attacked as over-broad if a student is wrongfully punished. I hope you’ll take a moment to read and share it.
Among the recommendations: Remember that the federal First Amendment may not be the strongest basis for challenge, and that the Due Process Clause and state constitutions at times offer more promising avenues for relief. Don’t concede that punishment is lawful because it “only” deprives students of extracurricular participation — a growing number of courts are recognizing that sports and clubs are a foundational part of a student’s entitlement to an adequate public education. And don’t concede that off-campus speech on the Web is entitled to the same level of protection, and no more, than speech during school in the cafeteria.