Can public schools discipline students for off-campus speech?

The “Cursing Cheerleader” Case

In a case addressing students’ First Amendment free-speech rights, the United States Supreme Court addressed a school’s ability to regulate student speech in a recent case widely known as the “cursing cheerleader” case.

The case began when a high school freshman student, after making the junior varsity cheerleading team instead of varsity, posted a profanity-laced critique of the coaches’ decision on her personal Snapchat page. Snapchat, a social media application, allowed the student’s 250 Snapchat friends to view the post for 24 hours. In that time, the post was brought to the attention of the cheerleading team’s coaches, who made the decision to suspend the student from junior varsity cheerleading team for the upcoming school year.

When the student’s requests that the school reverse her suspension were unsuccessful, her parents filed suit on her behalf, alleging that the suspension violated her right to engage in free speech without government regulation under the First Amendment to the US Constitution.

Ultimately, the court found that the student’s suspension violated her right to free speech because, although public schools may have a special interest in regulating some off-campus student speech, the special interests of the school in this case were not sufficient to overcome the student’s interest in free expression.

When can schools discipline students for off-campus speech?

It helps to first understand the circumstances under which schools can regulate on-campus speech. Schools have a special interest in regulating on-campus student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”

Three features of off-campus speech distinguish a school’s efforts to regulate off-campus speech as opposed to efforts to regulate speech that occurs on school grounds:

  1. First, a school will rarely stand in loco parentis (i.e., in the place of the student’s parents) when a student speaks off campus.
  1. From the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all of the speech that a student utters during the full 24-hour day. As a result, courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all.
  1. Third, the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy.

Taken together, these three features of off-campus speech diminish the leeway that the First Amendment grants schools when they regulate on-campus speech.

However, the special characteristics that give schools the ability to regulate on-campus student speech do not necessarily disappear simply because speech takes place in a location other than school grounds.

Examples of conduct that might trigger a school’s special interests in regulating student speech, even if the speech occurs off-campus, include: serious bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices.

If you believe that your child has been suspended for their off-campus speech, you should consult an experienced attorney. Please call us at (603) 288-1403 to see if we can help or fill out our online contact form for a free consultation.

Samantha J. Heuring

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