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Appeals Court Backs Discipline of Student for Off-Campus Harassment

A 7th-grader's sexual harrassment of two younger students in a city park adjacent to their school was not protected under the First Amendment as off-campus speech, a federal appeals court has ruled.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled unanimously to uphold a two-day suspension of an Oregon middle school student.

The student, identified as C.R., and several other 7th graders at Monroe Middle School in Eugene, Ore., teased and harassed a 6th grade boy and girl over several days, using terms related to oral sex and other vulgar language, court papers say. The students were traveling a path from the school that crossed into a city park and adjoins the school's athletic fields.

So the main legal question in the case was whether C.R.'s harassing speech was off-campus conduct. School administrators' said the behavior was covered by the school district's "door-to-door policy" covering student behavior to and from school.

C.R. was singled out for punishment by the school's principal and vice principal because he initially denied involvement in the harassment and he warned his fellow harassers about what the administrators would ask about even after he had been warned not to do so.

He and his parents sued on the basis that the discipline was an infringement of the free speech and due process rights. A federal district court rejected his claims and granted summary judgment to the school district.

In its Sept. 1 decision in C.R. v. Eugene School District 4J, the 9th Circuit court panel said the case presented "unique facts." (Although this kind of harassment on the way to and from school would seem to be a classic form of school bullying.)

"The speech at issue occurred exclusively between students, in close temporal and physical proximity to the school, on property that is not obviously demarcated from the campus itself," the court said. "A school may act to ensure students are able to leave the school safely without implicating the rights of students to speak freely in the broader community."

The court said student after-school speech at a shopping mall or movie theater might present a different case, but those locations are not the same as a piece of property that was adjacent to school grounds and that few people could distinguish as separate.

Furthermore, the court said, the fact that the speech was sexual harassment and involved relatively young student victims made the discipline all the more defensible.

"Sexually harassing speech, by definition, interferes with the victims' ability to feel safe and secure at school," the court said.

The 9th Circuit noted that many recent court cases on off-campus student speech have involved internet speech. 

"In our digital age, a school's power to discipline students for off-campus speech has become an increasingly salient question for the courts," the court said. But under this "analog" case, "we conclude that C.R.'s speech was tied closely enough to the school to subject him to the school's disciplinary authority."

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