Wake County Students Disciplined Over Off-Campus Viral Video Serves as Reminder Student Speech Rights Remain Unsettled in Digital Age

March 21, 2017

The Raleigh News and Observer reported on March 14 multiple Eighth grade students at Leesville Middle School in Raleigh, NC were disciplined due to a racially charged video the students had made and posted off campus. The video was made on a “music video app” and shared with an undetermined amount of people, some whom were also students at Leesville Middle. A parent caught wind of the video and alerted the school. The school quickly responded by notifying all parents of the incident and disciplining the students involved in making the video. Portions of the video have since ended up on news sites reporting on the incident.
Wake County, like an increasing number of school districts, has a code of student conduct which encompasses student behavior anywhere –on or off campus, offline or on. If school administrators reasonably anticipate that a student’s speech or conduct will “have a direct and immediate impact on the orderly and efficient operation of the schools or the safety of individuals in the school environment”, they may discipline the student for the speech or conduct.
As the News and Observer notes, this incident serves as a reminder that, content of the video in question aside, the larger question of what student speech is protected under the First Amendment has not been fully addressed by the Supreme Court since 1969. In Tinker v. Des Moines Ind. Comm. Sch. Dist., 393 U.S. 509 (1969), the Supreme Court held that a school may discipline a student for otherwise constitutionally protected speech if said speech were to cause a substantial disruption within the school or interfere with the rights of others – a standard reflected in the Wake County student code of conduct quoted above. Though subsequent Supreme Court cases have addressed narrower aspects of student speech (such as school-sponsored speech, Hazelwood Sch. Dist. v. Kuhlmeier., 484 U.S. 260 (1988) or speech promoting drug use, Morse v. Frederick, 551 U.S. 393 (2007)), Tinker remains the relevant standard for general student speech. The question of how schools may deal with student speech made off campus is even less clear. In an age of social media and viral videos, the question of boundaries between student actions off and on-campus is murkier than ever, with many questioning whether such boundaries can even exist in such a digitally connected world.

Circuit courts have addressed school discipline of off-campus student speech on social media, but the connection between the speech and the school has arguably been more direct.

The Fourth Circuit ruled in 2011 that a school could discipline a student for creating a Myspace webpage mainly dedicated to cyberbullying a fellow student. Kowalski v. Berkely Cnty. Sch., 652 F.3d 565 (4th Cir. 2011). The Third and Fifth Circuits both decided cases involving students releasing social media posts about school principals and teachers off campus. J.S. v. Blue Mt. Sch. Dist., 650 F.3d 915 (3d Cir. 2011) (finding school violated student’s First Amendment rights when they disciplined her for creating a satirical web profile of school principal); Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379 (5th Cir. 2015) (finding student’s First Amendment rights were not violated when school disciplined student for creating and sharing a song posted on social media describing violence against multiple school coaches). In contrast, the Leesville students did not target any particular student or school official in the video.
However, courts have also generally deferred to schools’ discretion in disciplining students over racially charged speech on-campus. In multiple cases concerning students wearing clothing bearing the confederate flag, Circuit Courts have ruled in favor of schools barring the symbol and disciplining students who wore it, especially when such a ban arose out of a racially charged school environment in which administrators could reasonably anticipate disruption over such clothing within the schools. See, e.g., Hardwick v Heyward, 711 F.3d 426 (4th Cir. 2013); A.M. v. Cash, 585 F.3d 214 (5th Cir. 2009). While the video for which the Leesville students were disciplined may not have named any particular student, but it did name various ethnic groups and claimed said groups were “not welcome” in America. In a school context where parents have reported their children have been the targets of bullying because of race, and where another Wake County high school is currently dealing with the fall-out of an on campus viral video depicting a racially charged fight between students, the school administrators would have an easy time demonstrating how the middle school students video would affect the on campus school environment.
Content of the students’ video and any First Amendment issues aside, one of the goals of public schools preparing young citizens for adult life. Adults now face businesses firing employees over ill-conceived social media posts and employers screening potential employees’ social media feeds during the application process. Disciplining students over an upsetting viral video is perhaps the best training for adult life a school could give. It is also a good lesson to learn early that no matter how few people a person may think a social media post will reach, there is always a possibility the post will suddenly gain a much wider audience.