Disciplining Public School Students and Employees for Their Speech

November 20, 2014

Over the last several months, the St. Louis area has been placed in the national spotlight with numerous protests throughout the community. When students and employees engage in demonstrations, it can create a difficult situation for public school districts — particularly when the action or statement of a student or employee threatens to disrupt the academic learning environment. With the expectation of additional protests over the next few weeks, it is important for public school administrators to know their options in responding to these issues.

Below are a few scenarios that highlight the interplay between the free speech rights of public school students and employees, and the primary interest of school districts in maintaining order and providing a safe learning environment. Each scenario briefly reviews a guiding legal principle and includes sample questions for public school administrators to consider before imposing discipline. Given how fact-specific each individual discipline decision can be, the questions listed below are not intended to be comprehensive. Instead, they reflect the types of issues and considerations that courts may examine when a discipline decision is challenged in the public school context.

A group on campus initiates a protest during school hours, with several students wearing shirts that display the same potentially controversial slogan.

Although public school students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," administrators can prohibit on-campus speech or expression that "materially and substantially" disrupts the school environment. If a protest disrupts the school day (e.g., a walk-out from classes) or includes objectively offensive speech (e.g., lewd or indecent language), administrators can impose discipline subject to the district's policies.

Here are some of the factors a court may consider when determining whether discipline of on-campus student speech is justified:

  • Is the slogan objectively offensive?
  • Is there a reasonable belief that the shirts will lead to a substantial disruption in the learning environment?
  • Does the slogan target a specific portion or identifiable category of the student population?
  • Has the school previously allowed students to engage in a similar type of speech even if that speech concerned a less controversial topic (e.g., apparel displaying a political position)?
  • Do the shirts violate the district's dress code or student code of conduct?

A video is shared throughout the building that shows a student participating in an off-campus demonstration and making a series of offensive, lewd, or vulgar statements.

Historically, off-campus speech has been exempted from public school regulation and student discipline. In today's world of constant electronic and video communication, however, off-campus speech can become on-campus speech with just the click of a button.

On its own, student involvement in an off-campus demonstration does not allow for school discipline. Once that involvement finds its way into the school building, there might be a risk of substantial disruption to the learning environment. Here are some of the factors that a court may consider when determining whether discipline of off-campus student speech is justified:

  • How was the statement offensive, lewd, or vulgar?
  • Does the video show the student engaged in any criminal or illegal activity?
  • Was any of the language directed at or related to the school?
  • Did the statement target a specific portion or identifiable category of the student population?
  • Did the demonstrating student play a role in the video's being distributed at school?
  • Did the on-campus distribution of the video violate the district's technology use policy or student code of conduct?
  • Did the district's policy on student conduct provide notice that off-campus actions could result in discipline?

A teacher makes a controversial comment on Facebook about a recent community protest; some students and employees are offended when they see the comment online and immediately share the post with others at school.

An employee of a public school district maintains certain free speech rights if the statement is made as a private citizen (i.e., outside of official duties) and if the statement is related to a matter of public concern. The question of discipline rests on balancing the teacher's interest in commenting upon a matter of public concern against the district's interest in promoting an efficient workplace.

Here are some of the factors that a court may consider when determining whether discipline of off-campus employee speech is justified:

  • Did the teacher's online comment jeopardize relationships with superiors or co-workers?
  • Is it reasonable to expect the teacher's comment to substantially disrupt school operations?
  • Did the teacher regularly use Facebook to interact with co-workers, students, or parents?
  • Is the teacher's affiliation with the school included on the Facebook page?
  • Does the comment fall within the scope of the teacher's job duties?
  • Did the teacher access Facebook during school hours or using a district-issued laptop?
  • Was the Facebook comment a violation of the district's technology use policy or employee code of conduct?

Without prior permission, a teacher leads a discussion in the classroom about local civil unrest; during the discussion, the teacher expresses an opinion that offends some of the students.

Public school teachers enjoy some level of academic freedom in their classrooms. That freedom offers less protection from discipline the further the conversation strays from approved curriculum or coursework.

Here are some of the factors that a court may consider when determining whether discipline of on-campus employee speech is justified:

  • Did the discussion topic relate to assigned material in the class (e.g., geometry class versus a social studies class in the middle of a civil rights unit)?
  • Was the topic appropriate given the age and maturity of the students?
  • Was the topic handled in a manner that respected the potential for differing viewpoints?
  • Regardless of the conversation topic, did the teacher express the opinion using offensive or insensitive language?

Situations should be examined on an individual basis, with specific facts determining whether discipline is appropriate. Of course, even if discipline is possible, there may be circumstances that lead an administrator to decide that discipline is not the best option.

If you would like to discuss practical tips for how your schools can proactively address these issues or if you have questions about your district's general approach to student and employee discipline, please contact one of the attorneys listed here.