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Can Schools Discipline Students for Social Media Use Outside of School?

It seems like only yesterday that we were eager for America Online to connect us to the Internet.

Those were the days—simpler times—when the main notification you had to worry about was, "You've got mail!" Now, social media allows anyone, including students, to make any part of life much more public.

Let's face it. There is no shortage of headlines about student voice making waves.

From social justice campaigns, to controversial photos or videos, students' social media posts can all rile up some strong reactions. Despite the opportunity social media gives student voice, unlike on-campus (and offline) speech, the Internet blurs lines that would otherwise delineate where student speech would be protected.

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In fact, some seemingly-inappropriate activity may in certain instances, especially with off-campus online speech, be forms of protected student expression. That's because at the intersection of school authority and student social media use, you will find the traffic light of Free Speech.

Though the issue of student social media use in school has been somewhat curtailed by clearer school policies and educators' diligence, what remains a challenge is how educators address off-campus online student speech that would otherwise be prohibited on campus. 

The First Amendment and Online Expression

More than ever before, it is crucial that educators know how the Constitution applies to student expression. They must be certain they are meeting their loco parentis obligation and ensuring students' Constitutional right to free expression.

In general, under the First Amendment what is protected expression offline is still protected online, even in schools and even for students—and that applies to social media. However, there are reasonable limitations to the First Amendment guarantees for students offline and in schools. Thus, student social media use, as a form of expression, can be subject to those same limitations.

That means a form of student speech online would be considered protected under the First Amendment if the same expression were protected in traditional offline format.

What's more, if a student's expression or speech would not otherwise be protected offline, then its online iteration can also be subject to consequences if outlined by school policy, or state or federal statutes governing the behavior.

The following court decisions can help educators navigate issues of online off-campus student speech while ensuring Constitutional rights are upheld. They highlight when schools could discipline a student for their social media use, including instances where:

  1. There is a legitimate and compelling state interest, such as a violation of a code of conduct established by school policy. (Tatro v. University of Minnesota, 2012)
  2. The social media content is directed at the school community in some way that could reasonably be understood to be threatening. (Bell v. Itawamba County School Board, 2015)
  3. It could potentially cause a substantive and material disruption to the educational process. (Tinker v. Des Moines, 1969)
  4. It promotes illegal activity, such as illegal drug or alcohol use, theft, etc. (Morse v. Frederick, 2007)
  5. If the content is obscene, lewd, or plainly offensive, vulgar, indecent, racist, or otherwise inappropriate in a school setting, e.g., sexually suggestive. (Bethel Sch. Dist. No. 403 v. Fraser, 1986)

What Educators Need to Know

In general, students have the right to freedom of expression unless it infringes on the rights of others, school safety, or interferes with the ability of a school to deliver its educational services and processes. Thus, off-campus online expression would be protected in the same way as traditional speech.

We must protect First Amendment rights of students while also recognizing that schools do have some ability, under very limited circumstances, to discipline students for off-campus speech.

As such, the crucial question for educators still remains: "When should I speak up?"

Where the First Amendment protection becomes more limited, or school authority takes precedence, is when educators need to say something. Some instances of student social media use, including that which is off-campus, amount to misconduct that can be disciplined according to school policy.

Let an administrator know about student social media use that:

  • Breaches school policy.
  • Leads to or creates substantial disruption to the educational process.
  • Results in bullying toward students or staff.
  • Threatens school violence.

Ultimately, with the great power of social media comes great responsibility. Whether online or offline, on-site or off-campus, student communication in the digital era is still plainly a First Amendment issue. We must keep that in mind.

Gary G. Abud, Jr. is an educational consultant, speaker, and writer near Detroit. His work currently focuses on helping kids with ADHD to succeed in school by offering coaching and workshops to educators, students, and families. Previously, Gary has served students in K-12 schools as a STEM teacher, curriculum specialist, and principal. In 2014, he was selected as the Michigan Teacher of the Year.

Photo by Flickr user Dick Thomas Johnson, licensed under Creative Commons.

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