Cyber Misconduct, Discipline and the Law: When Does a School District Have Jurisdiction to Discipline a Student or Employee for Cyber Speech?
Shipley, Gretchen, Leadership
Less than a decade ago, school district technology use policies essentially focused on school computer labs and the prohibition of cell phones on campus. Today, as schools integrate technology into classroom instruction and school operations, districts are moving quickly to implement policies to encourage digital citizenship throughout the school community. One particular challenge school administrators face is determining whether a school district has jurisdiction to discipline a student or employee for cyber misconduct.
Typically, it is not difficult for a school district to establish jurisdiction to discipline students and employees for cyber misconduct that occurs on campus or from school-based technology. Conversely, the issue of when a school district can discipline a student or employee for off-campus cyber speech poses a significant challenge to school administrators.
Interestingly, courts have seemingly provided greater speech protections to students for cyber speech than school teachers and employees. Two recent decisions found that a school district overstepped its bounds in disciplining students for cyber speech. In those cases, the courts found that the school district violated student First Amendment rights by disciplining the students, as the cyber speech did not cause a substantial disruption at school and it was not reasonably foreseeable that substantial disruption would occur. Whereas, a recent employee dismissal was upheld by a court where the cyber speech--which was not viewed by students--caused the principal to lose confidence in the employee as a role model.
What the court said
In J.C. v. Beverly Hills Unified School District, students made a four-and-a-half minute video after school that bullied a middle school student, calling her a "slut," "spoiled" and "ugly." They later posted the video to YouTube--J.C. v. Beverly Hills Unified School District (2010) 711 F.Supp.2d 1094. The video clip was viewed 90 times on the night it was posted on YouTube. After the parents of the victim complained, the student who created and posted the video was suspended from school for two days.
The court found that the suspension violated the student's First Amendment rights because the video, in the court's opinion, did not cause a substantial disruption and it was not reasonably foreseeable that it would cause a substantial disruption at school. The court held that addressing concerns of an upset parent, having five students miss a portion of their classes, and a fear that students would gossip was not substantial enough to warrant school district jurisdiction to suspend the student.
"Substantial disruption" vs. "rumblings"
Similarly, in J.S. v. Blue Mountain School District, a middle school girl created a MySpace parody profile of her principal from her home computer--J.S. v. Blue Mountain School District, No. 08-4138 (3d Cir. June 13, 2011). The profile included the principal's official school photo and descriptions of him such as "being a tight ass, spending time with my child (who looks like a gorilla), hitting on students and their parents, sex addict, pervert, I love children, sex (any kind), and my darling wife (who looks like a man)."
The school district suspended the student for creating the profile. The profile was the source of "general rumblings" at school, including six or seven students talking in class, resulting in a teacher telling them to stop three times; two other students reporting the profile to another teacher; and the school counselor having to reschedule several appointments.
Despite the "general rumblings" at school about the profile, the 3rd Circuit Court of Appeals found that it was not reasonably foreseeable that the MySpace profile would cause a substantial disruption at school and thus, the discipline was not warranted. The court held that the school district violated the student's First Amendment rights by disciplining her for creating the profile. …