Court ruling creates uncertainty in how Wake can punish students for off-campus speech
Wake County schools are being warned to be careful about suspending students for their off-campus speech following a recent U.S. Supreme Court decision that puts new limits on what schools can do.
In June, the U.S. Supreme Court ruled that a Pennsylvania high school violated a student’s First Amendment rights by punishing her for vulgar online comments she posted while she was off campus.
Neal Ramee, an attorney for the Wake County school system, told the school board Tuesday that the ruling has created a level of uncertainty about what off-campus speech might be protected.
“We now know that off-campus speech is subject to some degree more of First Amendment protection than it was a year ago,” Ramee said. “We just don’t know how much more. It’s going to be a case-by-case, be-very-careful, proceed-with-caution type of regime until we get a clearer rule from the courts.”
Wake school administrators and district attorneys are now reviewing how the court decision may impact policies. Ramee said principals should consult with the district’s Student Due Process office before initiating out-of-school suspensions for off-campus speech. Ramee said this way legal advice can be provided for each case.
“For the time being when we know that we’re in the danger zone when we’re suspending for off-campus speech, I think it would just be prudent to send a word out to principals,” Ramee said.
The district asked principals to listen online to Ramee’s presentation at Tuesday’s school board policy committee meeting.
The Pennsylvania case
The ruling has significance because schools across the nation, including in North Carolina, have disciplined students for their off-campus activities if they felt it would cause a significant disruption at school.
Brandi Levy was a 14-year-old high school freshman in Pennsylvania in 2017 when she expressed her disappointment over not making the varsity cheerleading team on Snapchat with a string of curse words and a raised middle finger, the Associated Press reported.
Levy was not in school when she made her post, but she was suspended from cheerleading activities for a year anyway, according to the AP.
The justices upheld an appellate court’s ruling that Levy’s First Amendment rights were violated.
Ramee said the justices have made it clear that schools can’t punish students for speech that’s analogous to what Levy said in her Snapchats. But Ramee said the justices appear to still allow schools to regulate off-campus bullying and harassment if the terms are very carefully defined.
Even if schools don’t suspend students for their off-campus speech, Ramee said principals can still counsel students about why their post was inappropriate. He said schools can send take-down requests to social media companies for posts that violate terms of use.
“You all should continue emphasizing non-disciplinary responses and interventions to problematic off-campus speech,” Ramee said. “Your strong preference for non-disciplinary measures is already very clearly stated in your policy.”
Cyberbullying of students
School board member Roxie Cash said there been several recent cases of cyberbullying in which principals haven’t disciplined students because the online speech took place off-campus.
Cash said the victims of the cyberbullying felt they had no choice but to change schools when no disciplinary action was taken. In one case, she said a student was told by the harasser that they should take their own life.
“I believe that freedom of speech off-campus is causing us some difficulty because sadly a lot of the students realize that at 4 a.m. in the morning or 5 a.m. in the morning they can actually go into social media on several sites and they can send out a very damaging, non-factual bullying post,” Cash said.
“The kids actually pick those up in school during the school day but they’re initiated outside of the school day because they have figured out that literally freedom of speech outside of school will protect them, because it has been doing that.”
Ramee and school board attorney Jonathan Blumberg responded that principals can still suspend students for online bullying or harassment.
“I don’t want anybody listening to think that off-campus cyberbullying is no longer subject to the Code of Conduct,” Blumberg said. “It is subject to the Code of Conduct.”
This story was originally published September 29, 2021 at 6:15 AM.
