An Administrator's Guide to California Private School Law

Chapter 15 – Student Discipline

S TUDENT F REE S PEECH

Section 4

A. S PECIAL R ULES R EGULATING S TUDENT S PEECH I N P RIVATE S ECONDARY S CHOOLS In California, the state legislature has determined that all high school students, including those in private schools, have the same free speech rights as they would have outside of school. 2144 The Education Code specifically prohibits secondary schools from making or enforcing any rule that disciplines a high school student at a secondary school solely on a basis that would otherwise be protected by the First Amendment or California Constitution. B. F REE S PEECH L IMITATIONS Before disciplining a high school student for speech, schools will need to consider:

 Whether the speech causes, or is reasonably expected to cause, material and substantial disruption to school operations or infringes upon the rights of others 2145 ;  Whether the speech is “plainly offensive” and inconsistent with the school’s basic educational mission, including inculcating students in habits of civility and propriety 2146 ;  Whether the speech promotes illegal drug use 2147 ; or  Whether the speech is part of a school-sponsored publication and the regulations of it are reasonably related to a legitimate educational interest 2148 . C.R. v. Eugene School District 4J 2149 C.R. and a group of seventh grade boys were disciplined for sexually harassing two disabled sixth grade female students, over a period of several days, while walking home from school. The boys had followed the girls home from school on multiple days, called them vulgar names, teased them, made sexual jokes and asked questions about watching pornography. C.R. sued the public school, claiming that his free speech rights were violated. The Ninth Circuit Court of Appeals, in considering whether C.R. free speech rights were violated, looked at whether the school could permissibly regulate his off-campus speech, and also whether the regulation of speech complied with first amendment requirements. First, there was no question that this type of speech – sexually harassing speech – fell within the categories of speech that schools may restrict. Second, the Court held that both the “nexus test” (whether the speech was closely tied to the school) and “reasonably foreseeable test” (whether the speech would reach the school) should apply and determined that the underlying facts satisfied both tests. Specifically, the nexus test was satisfied because the students at issue were all present at the same time as they were all released from school together. In addition, the speech occurred directly after school, on property that was next

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