An Administrator's Guide to California Private School Law

Chapter 15 – Student Discipline

Schools are becoming aware of concerns and complaints about students’ off-campus and/or online conduct with increasing frequency. Disciplining students for off-campus, online conduct remains an evolving area of the law and should be evaluated on a case by case basis. This is particularly important when a complaint involves student conduct that has occurred both on campus and off-campus and/or online. Complicating matters further is that schools must evaluate off-campus or online misconduct by high school students while recognizing the free speech rights extended to high school students. Below are some cases that demonstrate the various analyses adopted by courts regarding the intersection of free speech and discipline of high school students. 1. F AKE O NLINE P ROFILES False online profiles have been held to be both inside and outside the reach of discipline depending on the circumstances. In Layshock v. Hermitage School District, 2154 a high school senior, Justin Layshock, created a fake social media page of his school's principal while he was at his grandmother's house during non-school hours. The fake profile was also vulgar and offensive. Layshock invited his friends to view the fake profile, and accessed the page during class time. Once the school learned that students were accessing this page during class time, the school monitored student computer use until the upcoming vacation. As discipline, Layshock received a ten-day suspension, was placed in an alternative learning program for the rest of the year, and was banned from extracurricular activities and from his graduation ceremony. Layshock sued and the district court granted summary judgment in his favor with respect to his First Amendment claim. The Third Circuit Court of Appeals held that the school district did not have authority to punish the student for his expressive off campus speech even though it was lewd and offensive. By contrast, in Barnett v. Tipton County Board of Education, 2155 high school students Christopher Barnett, Kevin Black and Gary Moses created a “parody profile” of the school’s principal on a social media site. Although the profile was made on one of the student’s home computers, Christopher also accessed the computer during class. As students became aware of the profile, they began to access the profile and post comments about the profile on the social media page. Some of the comments implied that the principal had engaged in inappropriate behavior with female students at the school. The profile became a topic of discussion during class and some students as well as school officials believed that the profile had been created by the principal. An investigation was conducted and the student creators of the site were suspended. Controversy still continued regarding the site and in some cases school officials were requested to take class time to answer questions about the situation. As a result of a disciplinary hearing, Christopher and Kevin were further disciplined. 2156 Their parents sued, alleging that the discipline violated the students’ free speech rights. With respect to the issue of the reach of the school, the court found that the off-campus conduct of creating the profile “substantially disrupted” school procedures and thus could result in discipline.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 528