An Administrator's Guide to California Private School Law

Chapter 15 – Student Discipline

to or adjacent to the school. In addition, the school could reasonably expect that the speech would impact the school environment because the female students indicated that they were fearful of the boys, which could permeate their school experience. The Court therefore upheld the school’s discipline. Though this case concerns a public school, it is significant because it provides insight into how the Ninth Circuit, which governs California, would analyze a school’s decision to discipline for speech that occurred off campus. Since private high school students have free speech rights, California courts would likely apply the same reasoning as described in this case.

Students may not engage in speech that includes “harassment, threats, or intimidation, unless constitutionally protected.” Thus, a California court found that a statement by an angry high school student to a school counselor that “if you don’t give me this schedule change, I’m going to shoot you” was not protected by the First Amendment, as a reasonable person in the counselor’s position could consider it to be a serious expression of an intent to harm or assault. 2150 Schools can also impose “reasonable time, place, and manner restrictions” on the speech. Similarly, in Dariano v. Morgan Hill Unified School District 2151 , a federal case involving a California high school, the court found that the school district’s requirement that students not wear clothing bearing the American flag on Cinco de Mayo did not violate the students’ First Amendment right to expression. The court held that it was foreseeable that wearing tee shirts with the American flag could lead to a substantial disruption of school activities since the year before, on May 5, an altercation had taken place between Caucasian and Mexican students as a result of Caucasian students displaying the American flag. The court also noted that the school’s response “was tailored to the circumstances.” Exception for Religious Schools: The restriction on student free speech does not apply to private secondary schools controlled by a religious organization, “to the extent that the application of this section would not be consistent with the religious tenets of the organization.” 2152

Religious schools should establish standards of conduct in writing that are indicative of their religious principles.

LCW Practice Advisor

C. O NLINE S PEECH According to a report prepared by the National Center for Education Statistics and Bureau of Justice Statistics, over twenty percent of approximately 24 million students between the ages of twelve and eighteen reported experiencing bullying during one school year. Further, of those that reported experiencing bullying, nearly twelve percent reported experience online bullying. 2153

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 527