As we begin the academic year, educators are confronted with challenges unique to these unprecedented times. Across the nation, these has been increased politicization of public health measures during the COVID-19 pandemic, and the summer months have been filled with civil rights demonstrations protesting police killings of Black and Brown citizens. Our students have been watching these events unfold, and many have taken to social media platforms to
voice their own views. While freedom of speech may “best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger” public educators must balance the rights of students to express themselves against the rights of others to attend school in a safe environment that is free from bullying and harassment.
School boards across Texas universally have adopted some form of policy prohibiting bullying, cyberbullying and harassment. These policies derive from state law concerned with protecting students from harmful bullying. Texas Education Code Section 37.0832 defines bullying in relevant part as a single significant act or a pattern of acts directed at another
student or group of students that:
- is sufficiently severe, persistent, or pervasive enough that the action or threat creates an intimidating, threatening, or abusive educational environment for a student;
- materially and substantially disrupts the educational process or the orderly operation of a classroom or school, or
- infringes on the rights of the victim at school.
Cyberbullying is bullying that is accomplished through the use of an electronic communication device or social media application.
How, then, should an administrator respond when a student expresses controversial views or even hate speech outside of the school setting, but which is read and circulated among classmates and members of the school community?
Student speech generally falls within the definition of prohibited cyberbullying or harassment as defined in school policy if the administration determines that there is a reasonable likelihood that (i) an intimidating, threatening, or abusive educational environment has been created by the communication, (ii) a material and substantial disruption of the educational process or the orderly operation of a classroom or school will occur; or (iii) students are
likely to experience an infringement of their rights at school.
In many cases, even hate speech may fall within the protections of the First Amendment. For example, the Fifth Circuit noted that off-campus threats, harassment, and intimidation communicated through social media can create a tension between a student’s free-speech rights and a school official’s duty to maintain discipline and protect the school community. See Bell v. Itawamba Cty. Sch.
Bd., 799 F.3d 379, 392 (5th Cir. 2015). In that case, a student created and performed a song off campus that contained specific threats and harassment directed at two individual teachers. The song was communicated through social media with the intention that it would be viewed by members of the school community. Id. at 394. The court held that a school district may apply discipline for harassing off-campus speech when a student intentionally directs harassing speech at the school
community with the understanding that it will impact the school environment. Id., 396.
Speech that is intentionally directed toward the school community is distinguishable from off-campus speech that is intended to remain private.
In Porter v. Ascension Par. Sch. Bd., a student sketched a drawing of his school in the privacy of his home. The drawing depicted his school under attack by a gasoline tanker truck, missile launcher, armed individuals and other aggressors. The sketch included racial epithets directed at characters in the drawing and disparaged the school principal. 393 F.3d 608, 611 (5th
Cir. 2004). The student showed the drawing to his mother, brother and friend, but otherwise kept it to himself, but the drawing was ultimately shown to school officials, who then attempted to discipline the student. In that case, the Fifth Circuit ruled that “[p]rivate writings made and kept in one’s home enjoy the protection of the First Amendment... For such writings to lose their First Amendment protection, something more than their accidental and unintentional exposure to public scrutiny
must take place.” Id. at 617-18.
The world wide web can hardly be characterized as a private space, and students posting their views on social media sites certainly expect that the messages will be publicly available. A message that is publicly available, however, may not be directed towards the school community. For example, the Third Circuit Court of Appeals recently considered a student discipline matter in which a student was excluded from participating in cheerleading after making a
snapchat post disparaging the cheerleading program at her school in vulgar terms. The post was made over the weekend and on her own snapchat account, although members of her team read the snap. The Court held that the off-campus nature of the student’s snap precluded the school district from punishing the student by prohibiting her from participating in extracurricular activities based upon the content of her protected speech. B.L. v. Mahanoy Area Sch. Dist., 964 F.3d 170 (3d Cir. 2020).
In general terms, a school district may not discipline a student for the content of constitutionally protected speech absent a finding and showing that engaging in the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” Tinker v. Des Moines
Indep. Cmty.Sch. Dist., 393 U.S. 503 (1969). Such a finding must be supported by more than “undifferentiated fear or apprehension of disturbance”. Id.
The definition of prohibited bullying under Chapter 37 should be read together with the First Amendment protections under Tinker. If a school administrator determines that the classroom or school environment will be materially and substantially impacted by a students’ offensive off-campus speech, an administrator will want to carefully record for the basis for finding that the offensive speech has a disruptive impact in the school setting; parental
complaints, student complaints, staff complaints, threats of fights, etc. should be carefully documented. Given existing caselaw establishing that off campus student speech has First Amendment protection, if discipline is challenged, the school’s decision-making may be held to a “strict scrutiny” standard; this standard is a stringent one, and will require a specific, well-grounded factual basis for your finding of reasonably anticipated disruption.
Administrators may determine that although the off-campus speech is offensive, it is not imminently disruptive. In the absence of such a finding, discipline may not be an appropriate option. Counseling and restorative justice practices may assist such students in taking responsibility for harmful communications, developing empathy for those who may have other views, and assisting students in repairing and fostering positive relationships within the school
community.
