The Need for a Test to Help Courts Make Sense of Off-campus Student Speech

I have recently begun preparing for a paper I will co-author and present with Dr. Amy Dagley at Education Law Association's annual conference in San Diego where we examine trends in adjudicated free speech lawsuits involving off-campus communication resulting in on-campus discipline. This preparation included reading Benjamin L. Ellison’s opinion published in 2010 (85 Notre Dame L. Rev. 809). What struck me in Ellison’s piece was the following statement, “A test is needed to mark the boundaries of free speech protection from school discipline over speech that originates off campus.”

Ellison reviewed what other scholars have written on the subject of a test and then offered his own ideas. I would like to summarize the tests Ellison included in his opinion:

Tuneski advocated for an intent-focused test that would permit on-campus discipline if the student’s off-campus communication was directed toward the school, students at school, or school officials. The obvious challenge with this test is proving intent.

Adamovich argued that the standard for government employee speech should be applied to students’ off-campus communications. Specifically, Adamovich identified four points in determining if a student can be punished for off-campus communication: 1) intent, 2) “the number of listeners, 3) the nexus between the student speech and school operations; 4) the level of disruption” caused by the speech. Brenton and Servance also argued for nexus-based tests.

Pike differentiates between active and passive student communication. Active communications include email, text messaging, tweets, and phone calls. Passive communications are web pages, blogs, and social networking profiles. Ultimately, Pike argued that school officials should only be able to limit active forms of student off-campus communication.

Finally, Ellison offered a test that focused on pure intent and location. By pure intent, Ellison suggested that if school officials can prove that the student told others about the off-campus communication or showed others at school a website then intent has been established.  This definition of off-campus speech could be applied to all types of communication – electronic, print, etc.  With location, Ellison suggested that once school officials establish intent then the location transfers from off-campus to on-campus.

With that superficial summary of the different tests, I am interested in hearing what EdJurists bloggers and readers think on this topic. In effect, I am wanting to transition from one-way communication to a more interactive two-way discussion. I am also a bit of a dreamer and I think it would be commendable if this community of legal scholars were to develop its own test that appropriately differentiated between off-campus speech that is completely protected by the First Amendment and off-campus speech that should result in on-campus consequences. I am of the opinion that, ultimately, a test related to off-campus communication must adhere to the guidelines established in the student speech trilogy (Tinker, Fraser, and Hazelwood).

I look forward to reading what others think on this subject.

Comments

[Elva]

We deal with the question of free speech daily in our administrative duties at the high school level. Before disciplining a student for off campus e-speech, we ask ourselves:
1) Will this affect student learning?
2) Will this affect student safety?
3) Will the speech affect the students only off campus, on campus, or both?
Social media creates chaos for us in schools. Fights erupt because of bullying and harrassment via Twitter, Kik, Facebook, Snapchat...et al
Social media gives us a window on potential problems. Fights and substantial disruptions are truncated because we monitor social bullying and threats, and respond proactively. More and more, though, this takes a disproportionate amount of our time as administrators.
The key word is NEXUS. Parents/guardians are often frustrated because we do not act on negative interactions, but we must have that nexus between off-campus speech and on-campus effects to discipline a student.
Recently, a Twitter account was created that allowed students--and others--to post derogatory and often licentious information about students at our school. We couldn't prove that there would be a "material and substantial disruption of the educational process" until things built to a fever pitch of negativity, and we had our first fight over posts. Even then, many parents said we were overstepping our rights to discipline students who posted inflammatory remarks such as, "Georgia (not her real name) gave head to seven football players after last Friday's game."
Just a glimpse into the reality of the administrator's world of school management and school law. I appreciate all your updates on legal cases--and read them regularly to manage what we do at our school. Thank you!

[Joel VerDuin]

This topic is usually very frustrating for school administrators. With an increased emphasis on bullying protection, plus a blurring of off-campus / on-campus speech, the temptation to act on speech seems to be on the rise.

I am unsure if we need a new test. It seems like the currently established standards are effective at determining when school administrators ought to act. Substantial disruption was a judgment call in the past and it remains the same today.

Intent? I am not sure that should be a factor. A lot of issues we get involved with have intent. I have worked with a number of issues with students "speaking" horribly about school employees, but the speech occurs with personal equipment, accounts, and home networks. While the individual employee may have an ability to pursue recourse, the institution would be hard pressed to pursue consequences.

Passive -vs- active? Seems like arguing the wrong issue.

I'm all for using the same standards we have now. I think the biggest weakness in the current system is that school administrators have to know about a million things, and this is one that they should have a depth of understanding with - but we repeatedly see incidences where that doesn't seem to be the case.

http://www.startribune.com/local/west/245866411.html