An Administrator's Guide to California Private School Law

Chapter 15 – Student Discipline

In J.S. v. Blue Mountain School District, 2157 an eighth grade student, J.S., created a fake profile of her middle school's principal on a social media site. J.S. created the fake profile at home on her parent's computer. The profile contained crude and vulgar language, and personal attacks on the principal, but did not identify him by name. At first J.S. made the profile public, but quickly changed its privacy settings and only invited her friends to view the page. The middle school had blocked the social media site from its computers, so no one could access the site while at school. The principal requested removal of the social media profile and suspended J.S. for ten days. J.S., through her parents, challenged the suspension in court. The district court held that the suspension was constitutional because the profile was lewd and offensive, even though it did not cause a substantial disruption of classroom activities. On appeal, the Third Circuit Court of Appeals sitting en banc joined a majority opinion finding that the school district violated the student's free speech rights. The Third Circuit Court considered the U.S. Supreme Court's decision in Tinker v. Des Moines Independent Community School District , which allows schools to restrict speech that causes a substantial and material disruption, but found that there was no evidence of a substantial disruption. The Third Circuit also found that the student took specific steps to make profile “private” so that only her friends could access it and profile was so outrageous that no one could have taken it seriously. The Court emphasized that the student speech occurred outside of school grounds and during non-school hours, suggesting that the outcome might differ if the conduct occurred at school. 2. B LOGS , I NSTANT M ESSAGING A ND O THER F ORMS O F S OCIAL M EDIA Courts have upheld discipline by high schools for student use of social media off campus and during non-school hours where it is foreseeable that the speech would result in substantial disruption within the school environment, as shown by the following two cases. In Doninger v. Niehoff, 2158 a high school student, Avery Doninger, became engaged in a scheduling dispute between the student council and the administration. She posted a blog entry on her home computer that referred to school officials as “the douchebags in central office” and encouraged her readers “to write something or call [the superintendent] to piss her off more.” Avery and other student council members sent an email to friends of their parents encouraging them to contact the district on their behalf. As a result of these actions, the principal and the superintendent spent the next day responding to phone calls and emails and missed or arrived late to several scheduled meetings and events. When the principal and the superintendent then learned of Avery’s blog entry, they prohibited her from running for Senior Class Secretary. However, Avery was not suspended and was permitted to finish her term as Junior Class Secretary. Her mother sued, alleging that the punishment violated Avery’s First Amendment right to free speech. With respect to the reach of the school, the court found that a school district may discipline off- campus speech if it “‘would foreseeably create a risk of substantial disruption within the school environment,’ at least when it was similarly foreseeable that the off-campus expression might LCW Practice Advisor Although Blue Mountain involved a middle school student at a public school, under California law the analysis may apply to high school students at private schools.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 529