Everybody’s Talking about Student Speech

Student speech has long been a challenge for districts.  The ongoing expansion of social media usage by students continues to draw this area into focus.  Students are not going to stop tweeting, texting, or gossiping any time soon.  Knowing what to do when your students make offensive, threatening, or political statements requires you to keep updated on the most recent developments in this area.

In 1969, the famous Tinker case determined that districts could restrict speech that caused a disruption, but that some student speech was protected by the First Amendment.  Other cases determined that districts could control – or discipline students for – plainly offensive speech if there was a legitimate school interest in play.  The same rules apply for online student speech, but there must also be a physical connection to the school or a substantial disruptive effect at the school.

A 2015 decision from the Minnesota federal district court highlights brought these issues to the forefront of public discussion.  In that case, a student was expelled because he tweeted his agreement with a suggestion that he made out with a teacher.  The student sued, alleging that the discipline violated his First Amendment free speech rights.  In rejecting the district’s argument that the student’s speech was not protected by the First Amendment, the court held that the speech was not obscene, or reasonably likely to lead to a substantial disruption to the school environment.  The school district ultimately settled the suit for a substantial amount.

On the other hand, several courts have decided in recent years that districts can regulate, or even discipline students for, displaying the Confederate Flag, and other speech that courts deemed disruptive to the school environment or objectively offensive.  These decisions generally rely on the potential for disruption or the offensive nature of the subject, but the specific circumstances are important in each case.

The limits on disciplining students for their speech, including off-campus and electronic speech, is an ongoing source of potential liability for school districts.  Attorney Christian Shafer will discuss how districts can make the right calls at the MSBA Leadership Conference on January 14 at 2:30 p.m. in room M101A.