KingSpry Expulsion Upheld for Online Student Speech

Applying Tinker Standard to “Off-Campus” Online Student Speech, Middle District Upholds Student’s Expulsion

Posted on July 12th, 2016
by Karley Biggs Sebia

R.L. v. Central York School District, a case out of the United States District Court for the Middle District of Pennsylvania, secures a win for school administrators’ authority to discipline a student for speech expressed on social media “away from school property on a personal computer.”

Citing that “[t]he medium is not the issue – it is the message that is problematic”, the District Court’s decision is squarely in line with legal precedent on the issue and acts to explicitly apply the Supreme Court of the United States’ holding in Tinker v. Des Moines Independent Community School District, which requires a “substantial disruption” for schools to discipline for speech that occurs off-campus, in this case in the form of social media postings.  Further, this case signifies an acknowledgment by the Court that when considering the reach and potential impact of social media, “a bright line distinction between on-campus and off-campus speech . . . is both anachronistic and illogical”.   

The facts in R.L. begin with a student reporting at 8:30 a.m. that he found a note which read, “there is a bomb in the school.”

This led to an investigation, which resulted in approximately twenty police officers responding to the school, along with the State Police Canine Unit.  Approximately 1,700 students and 200 staff members were evacuated from the school building and the school’s gas lines disconnected. Soon after the note was discovered, a second bomb threat was posted on Twitter which read, “the bomb is supposedly in the stadium.”  At approximately 11:30 am, Students were sent home.

Also, at around 11:30 am, R.L., a student, while away from school property and using a personal computer, published a post on his Facebook page which read, “Plot twist, bomb isn’t found and goes off tomorrow.”  The Superintendent testified that in response to the post, the administration conducted an investigation of R.L. and treated the post as a continual bomb threat.

Upon completion of the investigation, R.L. was suspended for 10 days as a result of a “terroristic or bomb threat” and a notice was issued charging R.L. with engaging in “behavior or items brought to school that are inappropriate, that may cause a disruption to the school environment”.  Expulsion proceedings were initiated and R.L. was expelled for an additional 13 days.  R.L. filed suit in federal court alleging claims under Section 1983 for violations of his First Amendment free speech rights and Fourteenth Amendment due process rights.

In its written decision, the District Court relies on the Supreme Court decision in Tinker.

In Tinker, the Supreme Court articulated a framework to analyze student free speech claims.  Tinker involved students wearing black armbands while at school in protest of the Vietnam War.  There, the regulation of the armbands was determined to be an unconstitutional denial of students’ freedom of speech and the Supreme Court reasoned that the record “d[id] not demonstrate any facts which might reasonably have led authorities to forecast substantial disruption of or material interference with school activities, and no disturbance or disorders on the school premises in fact occurred.” 

Though the Tinker standard of a “substantial disruption” has long been applied by courts in adjudicating first amendment cases, the District Court in R.L. acknowledges that there is “discord in the Third Circuit over whether and how to apply Tinker to various student speech scenarios, especially those involving the Internet” and notably writes that “. . . a district court in this Circuit takes up a student off-campus speech case for review with considerable apprehension and anxiety.”

In R.L., the District Court held that as school administrators could reasonably forecast a substantial disruption at school caused by R.L.’s Facebook post, especially where such a post could reasonably be viewed as threatening student or school safety. Therefore, the District Court held that the School District did not violate R.L.’s First Amendment free speech rights when it disciplined him for publishing the post.

The Court also addresses the impact of a student’s intent on the discipline.  R.L. argued the post was “only meant to be a joke.”  The District Court quickly dismissed this argument and wrote whether the post was meant to be a joke is beside the point.  “. . . [W]hat matters under Tinker, is the reasonableness of the school administrators’ forecast of disruption – not the student’s subjective intent behind the speech.”   

Bottom Line for Schools

Although R.L. reveals a possible opening in the school yard fence that separates disciplinable from non-disciplinable student internet conduct, schools should proceed cautiously in disciplining internet speech generated outside the school setting.

R.L.’s ill-conceived and reckless quip is the “yelling fire in a crowded theater” example of speech that does not merit First Amendment protection in the first place. Perhaps due to the particular stage of litigation that this matter was adjudicated, the summary judgement stage, that threshold question, the earmark of every First Amendment analysis, was neither raised by the Parties nor addressed by the court. An expression with some political or social implications, completely missing from R.L.’s jest, is likely to have the First Amendment protection described in Third Circuit decisions such as J.S. v. Blue Mountain School District and Layshock ex rel. Layshock v Hermitage School District.

Whether a school may discipline for off-campus behavior requires fact-specific analysis. Schools facing this question should consult with their solicitor or one of the education attorneys at KingSpry.

School Law Bullets are a publication of KingSpry’s Education Law Practice Group. It is meant to be informational and does not constitute legal advice. John E. Freund, III, is our editor.