The College Fix

If you’re familiar with the Supreme Court’s Tinker precedent, you know that schools can only punish students for their on-campus speech if it causes “substantial” disruption to school discipline efforts.

What happens when the speech happens off campus? The 9th U.S. Circuit Court of Appeals, which covers Oregon, has said schools can punish students for that too.

A recent ruling out of Oregon appears to put some limits on what schools can do in response to off-campus speech, while also giving them a playbook for how to properly punish students – one that encourages excessive discipline for mild incidents.

Here are the facts, according to the Student Press Law Center: Eighth grader Braeden Burge got a C in health class. He vented to Facebook friends that his teacher was a “bitch haha” and “she needs to be shot.” His mom made him take down the posts within a day.

Burge’s posts weren’t public – only his friends could see them – but six weeks later, another student’s parent printed out the posts and gave them to the principal. Burge got suspended.

The school went too far, the judge ruled, because it was clear that Burge did not “seriously believe” his teacher should be shot.

But look at this reasoning from the bench:

Perhaps most importantly, the school did not take any actions upon which a rational juror could find that it reasonably foresaw a threat to appropriate school discipline. Upon receiving the printout of Braeden’s comments, neither Principal [Kara] Powell nor Superintendent [Linda] Johnson ever asked Braeden or his parents if he had access to guns, contacted the police, had Braeden evaluated by a mental health professional, discussed the comments with any of Braeden’s other teachers, or investigated whether Braeden made similar, subsequent comments. Instead, Principal Powell simply required Braeden to sit in a school office near the teachers’ mailboxes for three-and-a half days. Without taking some sort of action that would indicate it took the comments seriously, the school can not turn around and argue that Braeden’s comments presented a material and substantial interference with school discipline.

This ruling reminds me of the legal challenges that the Federal Communications Commission’s net neutrality policy faced a few years ago.

Stay with me: The FCC wanted to regulate how Internet service providers could use their networks – say, to prevent from them doing pay-to-play deals with big content providers. The agency lost in appeals court for a narrow reason: It had classified ISPs as “information services,” which are lightly regulated by design. Once the FCC reclassified them as “common carriers” (like traditional phone service) earlier this year, there wasn’t any obvious legal roadblock to the regulation sticking.

This judge has essentially told schools that if they want to punish student speech, overreact immediately: Call the cops, put the kid in front of a shrink, investigate the family and ban him from campus. Then you’re free and clear in court.

Certainly other schools in the 9th Circuit will get the message.

Read the ruling (it’s short) and SPLC’s story.

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