8/3/2019 Should Schools Punish Students for Offcampus Speech

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Should schools punish students for off-campus speech?

Churubusco High School in Churubusco, Indiana

 An issue that frequently occurs goes something like this. A student posts something on Facebook, writes an

opinion on a blog or sends a text message that offends some student, parent or school official. The districtbecomes involved and decides that a punishment must be meted out for whatever was said or done. Oftenthis includes suspension from school, sports activities, prom attendance or a host of other school activities.There is a tension that exists between student speech rights and the authority of a local school district toenforce appropriate discipline.

Free Speech Issue: Should school districts punish students for their off-campus speech and press?

The Teen Lollipop Scandal A case receiving current publicity involves three teen athletes from Churubusco High School in Churubusco,Indiana. They were banned from extracurricular activities, including volleyball and choir, after postingraunchy slumber party photos. These included pictures of the girls sucking on phallic-shaped lollipops andsimulating sex with each other on MySpace, Facebook and other social media outlets. The girls werereported to their local high school principal who decided they were in violation of a school conduct code andhad brought dishonor upon the volleyball team. The girls claimed they were trying to be funny and intendedfor the pictures to be seen only by their friends.

Legal Considerations The courts have given schools rather broad authority in regulating student speech.They repeatedly state that students do not enjoy the same rights or protections as adults. In HazelwoodSchool Dist. v. Kuhlmeier the supreme court set ground rules limiting student speech it "substantiallyinterferes with [its] work . . . or impinge upon the rights of other students. In Canady, 240 F.3d at 441 Thecourts identified four categories of student speech.

While certain forms of expressive conduct and speech are sheltered under the First  Amendment, constitutional protection is not absolute, especially in the public school setting.Educators have an essential role in regulating school affairs and establishing appropriatestandards of conduct.. Our court has identified four categories of school regulations aimed at student speech, with each being reviewing under a different standard. These categories are:

1. school regulations directed at specific student viewpoints;

2. school regulations governing student expression involving lewd, vulgar, obscene or offensive speech;

3. school regulations governing student speech related to school-sponsored activities;and 

4. school regulations that are viewpoint-neutral and fall into none of the previous threecategories. Id., 240 F.3d at 441-44

What the Judge DecidedWhen parents of these girls filed suit against the school district, Judge Philip Simon ruled that the girls

8/3/2019 Should Schools Punish Students for Offcampus Speech

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speech, though in poor taste, was not actionable by the school district because it did not substantiallyinterfere with the work of the school. And, he strongly disagreed with the school's assertion that thephotographs qualified as "sexual misconduct" under Indiana law, since there was no actual nudity.

DiscussionNo doubt there will always be tension between school districts and their students. While schools do not wishto be moral arbiters for the community any more than they have to be, they are expected, nonetheless, to doall they can to ensure that their pupils become well socialized members of society. At the same time, we

expect school districts to teach, honor and instill the fundamental principles of our democracy--includingfreedom of speech.

1. Wherever possible, school districts should not interfere with the free speech rights of itsstudents. Unless a clear and compelling reason can be made that students are actually interfering with theeducational process, districts should stay out of controversies involving speech between other students.

2. School districts should not be assuming the role of parents. Districts that punish students for off-campus speech are assuming the role of parents. At best, they might notify parents of misbehavior.

3. The constitution doesn't punish spee ch for bad taste and neither should the public schools.The rule of Tinker and Kuhlmeier should be followed here. As long as what is said and done not interfere

with the educational process, students should be afforded the same constitutional rights as their parents.

Legal Cases for Further Study

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