Guest Post By Professor David L. Hudson, Jr.
The most pressing question in student-speech (K-12) jurisprudence concerns just how far the arms of school authorities reach. Nearly fifty years ago, the U.S. Supreme Court famously proclaimed in Tinker v. Des Moines Indep. Comm. Sch. Dist. (1969) that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
The Tinker case involved brave students in Iowa who wore black armbands to their schools to protest the Vietnam War. The Supreme Court ruled in their favor and established a legal rule that applies to this day: can school officials reasonably forecast that the student expression will cause a substantial disruption of school activities?
The Tinker case involved students engaging in peaceful, symbolic expression on school grounds. It is clear that school officials have the power to enforce constitutional rules as applied to students on campus.
Thus, the question becomes: can school officials apply the same “substantial disruption” standard to expression created wholly off-campus? Is it enough that the student’s intended audience are fellow students? Is it enough that someone at the school will feel outrage or distress at the off-campus expression? Is it more a matter of parental discipline or, in the case of truly threatening expression, of law enforcement?
A recent decision by the 5th U.S. Circuit Court of Appeals en banc presents many of these questions. In Bell v. Itawamba County Sch. Bd., the 5th Circuit ruled that school officials could punish a student who posted a rap video he produced on Facebook and then YouTube that criticized two school coaches in explicit and sometimes harsh language.
The 5th Circuit majority determined that school officials could punish the student because the video amounted to harassing, intimidating, and threatening expression and, as such, rose to the level of substantial disruption.
Several dissenting judges disagreed, emphasizing the totally off-campus nature of the expression.
If the case is appealed to the U.S. Supreme Court, the High Court should take a very close look. The federal circuits are deeply divided on the standards to apply to student off-campus, online speech.
School officials and students deserve to know the rules.
Attorney David L. Hudson, Jr. is the author of Let The Students Speak!: A History of the Fight for Free Expression in American Schools and Teen Legal Rights (3d. ed.).