Can a school suspend a student for angry posts on Facebook? Courts across the country have asked that question and come to different answers. Earlier this year one federal judge in Portland, Oregon said no.
In 2012, Braedon Burge got a bad grade from his teacher Ms. Bouck at Colton Middle School. In response, his mother grounded him for part of the summer. Braedon did what almost any kid would do these days: he complained about it on social media. He posted on his private Facebook page that he wanted to “start a petition to get mrs. Bouck fired, she’s the worst teacher ever.” A friend asked what she did and he responded “She’s just a bitch haha.” The friend laughed along with him, to which he responded “Ya haha she needs to be shot.”
The post was visible less than 24 hours before Braedon’s mother made him remove it, but six weeks later, that post would come back to haunt him. Another student anonymously delivered a screenshot of the post to the principal’s office. Principal Powell questioned Braedon, showed him the school’s policy, and gave him a 3 1/2 day in-school suspension – sitting in the office next to the teachers’ mailboxes.
Braedon’s mother complained. She had already disciplined him for his out-of-school speech. The school didn’t need to do anything more. When the suspension stood, she took the issue to court.
Can Schools Discipline Students for Facebook Posts?
The Supreme Court has yet to tackle the question of whether a school is allowed to suspend a student for what he says online, off school time and property. But that hasn’t stopped many lower courts from applying the same rules as when speech happens on campus:
A school can restrict speech that “would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” Tinker 393 U.S. at 509.
The 9th Circuit Court – which has jurisdiction over Portland, Oregon – said this same standard applies if an out-of-school statement left a school “faced with an identifiable threat of school violence.”
No Disruption? No Suspension.
When the court applied the test here, it found that the school didn’t respond as though it had identified a threat of school violence. It did not call the police or investigate Braedon’s access to weapons. It did not even remove Braedon from the school. Nor did the target of the speech, Ms. Bouck, seem overly concerned. While she objected to Braedon being placed back into her class, when the principal did it anyway, she didn’t complain or miss any work.
The Portland judge said that this showed that no one, not even Ms. Bouck, actually took Braedon’s post seriously. Since there was no identifiable threat of school violence, the school couldn’t suspend Braedon for his out-of-school Facebook post.
READ THE FULL OPINION HERE.
Schools often try to discipline students for the offensive things they say on social media. But unless the speech causes a disruption in the school, they need to let other authorities like parents, police, and social workers, do their parts to teach them responsibility and appropriate behavior.
Lisa J. Schmidt is a juvenile law attorney at Schmidt Law Services, PLLC, in Ferndale, Michigan. She represents students on the wrong side of school discipline and in the juvenile courts. If you know a student who is facing suspension or expulsion, contact Schmidt Law Services today for a free consultation.
