Student Online Speech Rights on and off Campus: If Off-Campus Online Speech Presents the Likelihood of a Disruption on Campus, Administrators Can Respond by Disciplining the Responsible Students

Students do not shed their rights to freedom of speech and expression at the gate. --Tinker v. Des Moines, 393 U.S. 503 (1969) Nearly 50 years ago, Justice Abe Fortas penned those words when the U.S. Supreme Court overturned a school's action to discipline students who wore black armbands to protest the Vietnam War. Justice Fortas' opinion held that administrators could discipline a student only when they could reasonably forecast that the student's speech would cause a substantial disruption to the school. The language of schoolhouse gate seems archaic today. The boundaries of speech today really don't rest on the physical boundaries of the schoolhouse gate. We are no longer just faced with the students' right to speech in the school hallways. What about their rights vis-a-vis the school when they are outside of the schoolhouse gate sitting at home or in a coffee shop blogging, tweeting, and posting? Does the school have any control or recourse when students post and text after school hours on their own devices and outside the physical confines of the school? Justice Fortas could not have been thinking about a Facebook post when he penned those landmark words. However outdated the court's language may seem now, its overarching conclusion is still very relevant today. In terms of student speech on campus, schools clearly have the authority to limit speech that is disruptive, lewd or vulgar, or encourages the use of illegal drugs. When the speech is off-campus, a school's authority is not so clear. Do schools have the authority to discipline students for speech that was created or emanated off school grounds? Most often, a student's off-campus behavior must connect in some way to the school before administrators have the authority to control the behavior. Generally, the school cannot discipline a student for something that occurred away from school. Some courts have expressed this as needing a nexus: There must be some connection between the student's actions and the school to allow the school to discipline the student. Courts ask if the student's off-campus speech or behavior is tied to the school's educational interests. Can a student be suspended for an off-campus assault? No. Can a student be suspended for an assault between two students on the way to or from school? Yes, there is a connection between the school and behavior in that instance. Electronic speech For student electronic speech, the courts seem to be taking a more direct approach. If the student's behavior creates a disruption --or there is a reasonable expectation that the behavior would create a disruption--in the school, then administrators can control or punish the student for the behavior. The disruption (or reasonable expectation of a disruption) provides the nexus, which gives the school the authority to respond to the student's behavior through disciplinary action even though the behavior technically occurred off school grounds. For example, in Kowalski v. Berkeley County Schools, 652 F.3d 565 (4th Cir. 2011), cert. den., 132 S. Ct. 1095 (2012), a student created a web page called SASH (Students Against Sluts Herpes), which was dedicated to ridiculing a fellow student. Pictures of the student and demeaning comments about her were posted on the site. The school disciplined the student who created the site by invoking the district's hate speech and harassment policy. The appeals court upheld the discipline, finding that schools have an obligation to protect students from harassment and bullying in the school environment. Kowalski claimed the school could not discipline her because she created the site off campus. The court disagreed and pointed out that the student that the electronic response would be, as it in fact was, published beyond her home and could reasonably be expected to reach the school or impact the school environment. She also knew that the dialogue would and did take place among . …