The rise of social media and cell phones opens up a wide variety of communication, and while this can be positive, it’s not without concerns. The opportunity for students to easily keep up with each other outside of school can be a great way to maintain and build friendships. Unfortunately, it also opens up other avenues of spreading gossip, bullying other students, and getting caught saying something rude about a teacher. After all, once something is recorded and placed on the internet or is sent to someone else via text or direct message, there is little expectation of privacy. Thus, if educators find out what a student says or does outside of school hours and find it breaks school rules, can they be punished for it. The answer isn’t black and white, and our attorneys in Raleigh are delving deeper to help your children understand their rights of free speech.
Free Speech is Protected for Students
Recently, a case went before the Supreme Court that made headlines nationwide – the “swearing cheerleader,” or Levy vs Mahanoy Area School District. Brandy Levi made a video outside of school hours and not on school property where she used profanity and extended her middle finger to the camera to express disappointment about not making the varsity cheerleading team. Then, she posted the video on Snapchat where the cheerleading coach saw it. She was suspended from cheerleading activities for a year, and her parents took the case to court. The Supreme Court took up the case and ruled eight-to-one in favor of Levy, citing the suspension violated her freedom of speech to dissent.
Justice Breyer cited this case, and also wrote that while Levy’s video and words may not be worthy of a First Amendment protection, it is “necessary to protect the superfluous in order to preserve the necessary.”
This is not the first time SCOTUS has taken up this type of case. With Tinker v. Des Moines, students wore armbands to protest the Vietnam War and were suspended for doing so. SCOTUS ruled in their favor saying in the opinion that students don’t lose “constitutional rights to freedom of speech or expression at the schoolhouse gate.” However, the court did maintain that the school can restrict speech that would be disruptive. This includes:
- Bullying or threatening behavior targeting a specific individual;
- Threats directed at teachers or students;
- Breaking rules about schoolwork or participation in online school activities;
- Security breaches using school devices or breaching school security (to hack into school computers, for example).
Because Levy was outside of school, her actions were not considered disruptive to the school, nor the cheerleading squad, thus, it was infringing her freedom of speech.
Online Bullying Outside of School Hours
While Levy’s punishment for what she said on social media was a violation of her rights, it’s important to consider that no one was disrupted or threatened by her words. As we mentioned, SCOTUS outlined circumstances in which schools can punish students for off-campus speech and activities.
In North Carolina, anti-bullying laws cover off-campus conduct, and school districts are legally mandated to adopt a policy prohibiting bullying or harassment. In fact, these anti-bullying policies must include:
- Statements that prohibit bullying and harassment;
- Definitions of bullying and harassment that are as or more inclusive than the state’s definition;
- Disciplinary consequences for the offender;
- Procedures for reporting and investigating.
A student can be punished if what they do outside of school:
- Creates a “hostile environment by substantially interfering with or impairing a student’s educational performance, opportunities, or benefits,”
- They place a student in actual, reasonable fear of being harmed or having their property damaged or destroyed.
Contact Us to Discuss Your Case
If your child was wrongfully punished by their school or you feel the school is not taking care of a situation in which your child is being bullied, we can help. Reach out to our civil attorneys today at 919-615-2473 or fill out the form below to learn more.
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